We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

Samizdata quote of the day

IN 2006 EMI, the world’s fourth-biggest recorded-music company, invited some teenagers into its headquarters in London to talk to its top managers about their listening habits. At the end of the session the EMI bosses thanked them for their comments and told them to help themselves to a big pile of CDs sitting on a table. But none of the teens took any of the CDs, even though they were free. “That was the moment we realised the game was completely up,” says a person who was there.

The Economist reports on the decline and fall of the music studios.

145 comments to Samizdata quote of the day

  • TomG

    Yup, CDs are quickly heading ‘the way of the dinosaur’ – along with the VHS market (I’m able to pick up a bunch of taped movies for pennies on the dollar – great until the day my player craps out). A major music chain store in our area closed a few months back – and I hadn’t seen any significant # of young persons in it for a couple of years now. Funny how my ’04 car still has both casette (remember those?) and CD players – talk of built-in short-term obsolescence.

  • Ian B

    Well, I hope it doesn’t come down to just giving away for free. Nothing can be free. It has to be supported by something else.

    Ad supported works need massive volume sales to be profitable. It’s very bad for niche products, which would survive on small sales. You might not get fabulously wealthy selling a niche product, but so long as you make enough you can keep going. There’s no room in ad supported products for that- because the people advertising will need masses of impressions.

    The ultimate problem is the disconnect between the consumers and the producers. Once you’re an advertising loss-leader (and that’s true with tech deals as well- “buy our phone and get some free crap”) then the producer’s client is no longer the consumer. The product has to be honed to fit the advertiser’s desire, not the consumer’s desire. That’s not good. Look at TV. Shows get cancelled for not having enough millions of viewers.

    People complain about music, and the music industry. They listen to some mainstream station like Radio One, and say the music’s all homogenised rubbish. But the reality is that from the 20th century to now we’ve had an unprecedented wealth of musical diversity. Go into a record store and the diversity of music available is astonishing. The industry must have been doing something right.

    So maybe we’re at the end of music. All we’ll have in future is advertising jingles. Then people will complain about the corporations, or something. What one can guarantee is that they won’t think that maybe it was their own fault for refusing to consider paying for something better.

    I have a kind of parallel interest in this because I sell something digital. I sell a rude comic on the internet. I’ve heard all the arguments about how I should do it for free. But if I had to do it for free, I wouldn’t do it. If I had to sell ads to support it, I probably woudn’t bother either. What keeps me working nights to meet a deadline is terror of customers cancelling their subscriptions. What gives me the freedom to write and draw what I want is the direct connection to those customers. If I were just trying to make something honed to some advertiser’s desires, I’d cast around for something less labour intensive to lure pageviews. Maybe lolcats or something. I wouldn’t spend 80 hours a week hunched over Photoshop for it.

    I’m sure there’d be barely a ripple of notice if my little website disappeared. But if everyone’s stuck with the same dilemma, we’d see a lot less diversity of product.

    I think this’ll all backfire, anyway. People will look back at the Golden Age of music and wonder what happened to it. They probably won’t consider it was down to their own fists being a wee bit too tight.

    Just MHO, as usual.

  • So maybe we’re at the end of music. All we’ll have in future is advertising jingles.

    No, we are not at the end of music, we are at the end of BIG music. Not the same thing at all. Music is not going to vanish, it is just going to all be ‘long tail’ now.

    But you are right that advertising is not a good business model for very many things at all.

  • Am I a complete idiot? I just bought a CD.

    I bought it on-line, and when it arrived next day I ripped it to my PC, which automatically synced it with my MP3 player.

    Why a CD? I think because
    – It was cheap – no more expensive than downloading it all from itunes
    – It comes without any irritating DRM
    – It can be transferred to any format and any type of player
    – It has a nice booklet

    I don’t conclude from this that CDs have a long future ahead of them (no, of course they don’t).

    I *do* conclude that the music industry is *very* mixed up. Given that I actually want my music in digital form, how can it be that I still find it convenient to buy the CD?

    Or maybe I am in idiot.

  • ResidentAlien

    Car stereos with cassette players are, actually, still very useful. You can connect your MP3 player into a cassette player much more cheaply and with higher quality than messing around with those ridiculous FM transmitters.

  • Ian B

    Er, Perry, last I heard the “long tail” was one of those tech-utopian buzzword myth things :)

    Anyway, the article didn’t say long tail. If you can’t sell your product, there isn’t a tail of any length. If big eeeeeeeeeevil corporations can’t sell music, small rural idyllic companies can’t sell music, nor can individuals. There’s no market, period.

    And that, to all intents and purposes, is the end of music. Other than advertising jingles, that is.

  • lucklucky

    Where is the good music that is being made?

    I think Music is going the way of painting and other arts that went mostly flat. The end of high speed inventivness and trully new sounds is to be expected. That is normal, our senses are limited and high output human production since the West started to get healthy and could sustain thousand Music artists means that most of it was invented already, or maybe most of what is easy with current knowledge. There is probably a limited number of pratical variations. Like in Olympics records are more dificult to be beaten year after year.

  • Eamon Brennan

    Of course this is not the end of music. One interesting aspect of the decline of sales is the re-introduction of live music as a main revenue generator for bands.

    In the sixties and seventies many bands used a single or album release to advertise a tour, where they made their money. In the 80s and 90s much of this was reversed with live tours in decline and sales driving revenue. This in turn seems to have reversed in the last year or so.

    This is only anecdotal but I am now noticing that teenagers seem to be going to a lot more live events than they were 5 or 6 years ago. Smaller and more varied ones too.

    People may just look back on this as being the beginning of a golden age of music, rather than the end.

  • Ian B

    One interesting aspect of the decline of sales is the re-introduction of live music as a main revenue generator for bands.

    Tours are expensive, gruelling, and not suitable for all types of music. They’re not much use to consumers in places the tours don’t visit. They’re not a replacement for recordings.

    Anyway, the point we’re talking about here is recorded music. If there’s no money to be made, what’s the point of recording it? I like recorded music. I don’t want to hear it live, necessarily. I want to hear it while I’m doing the washing up. Where will the money come from to pay for that?

  • Did it ever cross these people’s mind that what was on offer for nothing was complete and utter shite? I mean are they expecting teenagers to take any ole’ crap merely because its free. I think that attitude is indicative of the type of contempt music execs have for their customers.

  • countingcats

    Tours are expensive, gruelling, and not suitable for all types of music. They’re not much use to consumers in places the tours don’t visit. They’re not a replacement for recordings.

    Absolutely, just like any other work.

    Recordigs will still be made and revenue may still be generated from them. How? I am not sure, but half a dozen possibilities spring to mind, although none of them may be viable.

    Don’t forget tho, the wider a recording is spread the more people will hear of the artist. In fact, dumping a recording onto the net and letting it spread will be an effective and cheap form of marketing. So long as there is an appropriate means of identifying the artist.

    What WILL happen, is that the recordings will market the artists live concerts. They will just have to spend more time on the road to get an income.

    In fact, I suspect that in the medium term this will result in an explosion in varieties of form available to the consumer. Just as recording did in the first place.

  • Ian B

    What WILL happen, is that the recordings will market the artists live concerts. They will just have to spend more time on the road to get an income.

    I wonder if anyone’s ever done an actual economic analysis of this, or bothered to find and read one, before leaping in the air shouting “Everything must be free!”

    Look. If the only use of a recording is to market a live tour, which will make far less money than selling records did, investment in the recorded artifact will drop. Drastically. You’re down to advertising jingles with knobs on. Will anyone bother recording a Dark Side Of The Moon? Why bother? It’s not going to make any money is it?

    I’m sorry, but I think that this whole attitude is basically the same fallacy as socialist provision. It’s demanding something for free, then handwaving away how it’ll be paid for. Somebody else will pay, that’s all that matters.

    So what’s being said here is you take away all the money form the industry that currently comes from sales, then somehow this vasty explosion of touring will make it back. Well, I don’t believe that. How many more gigs are artists expected to do? Many are doing as much as they can already. There are only so many days in the year. A band can’t do, practically, more than 365 gigs per year, and they’ll probably collapse from exhaustion if they try that. You’ve got a finite limit on what money can be made.

    Subtract from those days the number they have to spend in the studio recording music that they’re, um, going to give away for free. It doesn’t work out very well once you start to think about it. There isn’t a great deal more money to be made from touring. You then take money away from that to pay for free music to promote the touring. This doesn’t look like a good business model. But I don’t think people arguing for it care about the economics. They just want this “free at the point of use” utopia, with the usual anti-corporate bollocks thrown in as extra justification.

  • Nick M

    Ian B,
    You’re way to pessimistic. I seem to recall hearing that the music industry was at first sceptical about radio! The folks here who are predicting a golden age are right. You can bang together a music video for next to nothing and distribute it for peanuts. I could do it this weekend and the only thing stopping me is that I have no musical talent whatsoever.

    And the net is great for niche markets. Now, gay hobbit porn is probably a tough sell any other way but introduce the ‘net and it’s different. What I’m saying is that if 1/10000 is into what you have to offer be it GHP or some real niche folk music or whatever then it’s not a player to have a bricks and mortar store… but online that 1/10000 means potentially a very large market, globally.

    My really big hope for developing the social individualist meta-context for the future. is that people are I think, due to the ‘net, becoming more individualistic because their highly niche desires can now be economically catered for and as well as that they realize they’re not alone. Example: I hadn’t even heard of libertarianism until I happened across Samizdata and there’s thousands of you here, every day. The net makes minority interests accessible and (and this is important too) provides a level of anonmity because a lot of minority pursuits and opinions are a bit embarrassing to ‘fess up to down the pub. This isn’t just weird sexual kinks but stuff like live RPGs or some of the odder stuff people collect. It means for instance that I learned how to handle a virtual F-86 by reading the original’s manual. Hardly something you’re likely to find in even a very well-stocked Borders… But it was on the net as a pdf. It also meant I could have informative chats with a bloke who was a crew-chief on ‘em in the 50s. Not someone I was likely to bump into in the local boozer. Well, not round here, anyway. And how would I know what he used to do?

  • I’m in a similar position to botogol. I buy CDs so I can rip them to a lossless compression format and play them from a headless Mini-ITX Linux box in the corner of my lounge, using MPD and selecting the tracks with the browser on my phone. But I suppose I’m a niche market.

    Ian B wrote: “I sell a rude comic on the internet.” If you’re holding back out of politeness to your hosts, please don’t. We need links!

  • RAB

    Actually it was the other way round Eamon. Bands toured to promote the album not to make money from the gigs.
    All that has happened is that record companies have lost the monopoly of the means of distributing music.
    Musicians are quite capable of recording and distributing their own music for next to nothing and put it out on the net.
    The free download will act like airplay has always done, raise the awareness of the band or group.
    And yes they will have to tour more to earn their money.
    But they will be able to negotiate a bigger slice of the house than the record companies ever gave them.

  • Er, Perry, last I heard the “long tail” was one of those tech-utopian buzzword myth things :)

    I think that is profoundly incorrect. In fact I think the long tail is truly The Future in oh so many ways, not just music. I am reminded how just a few short years ago, blogs were ‘just a fad’. And now most major newspapers have one. How does it go again? ‘Ignored – Ridiculed – Denounced – Good Idea’.

    Anyway, the article didn’t say long tail. If you can’t sell your product, there isn’t a tail of any length.

    And they are (partially) wrong. Sure, certain products will disappear (music is not one of them). Other products will mutate (or at least the types of companies who produce them will). If a few pennies per track is what the market will pay (and the success of safe and cheap Russian mp3 sites indicates people will pay a little for convenience and safety) , then that really is the market rate for music in a digital age. People who can live with that will make music, and those who cannot will not. People will make music for different reasons and with different expectations (which means it may be a different kind of person who makes the music), but people will still make music.

  • Nick M

    Ian B,
    Nonsense. The top bands make a bloody fortune touring and I guess the rest are kept in beer and skittles. Also, lets say you want a particular song… You have too options: pay for a download or torrent it. OK, the latter is “free” but my understanding is that iTunes is 70p in the UK now and frankly it’s a time/money thing. It’s the same reason people buy boxed sets of The Simpsons. I once torrented the entire Tom & Jerry canon and it’s utterly useless because it isn’t divided into episodes or indexed or anything. It’s languishing on my HD in the form of 10 CD images of 50 odd episodes and while in principle I could retreat to the shed and spend a gruelling day getting it into a properly watchable form, burning it to DVD and all the rest I might as well have bought the bloody thing. I think I will if I ever see it for sale. There’s another thing with the torrent – it takes bloody ages. Downloading a movie a 1Kb/s is like that geezer in Spain who is (I think still) building his own cathedral.

    The reason for MP3 catching on big-time is it’s so bloody convenient and I also believe that’s why CDs did in the 80s. Remember selecting tracks on an LP? Or the endless FF/Rewind with tapes? If it’s priced low enough and it’s more convenient than searching through the bowels of the torrent sites only to find they’ve only got a video version with the bloody MTV logo still in the corner that some moron taped off a dubious NTSC feed in 1988 then yes, people will pay. I bet you have in the last few years bought out of copyright books. These are available online free and legal, right? Yet how come book stores still consider stocking Jane Austen or Shakespeare? The mode of delivery of information is critical. And people will pay for stuff if paying means it’s more convenient or in a more usable form.

  • Ian B

    Nonsense. The top bands make a bloody fortune touring and I guess the rest are kept in beer and skittles.

    I’m really not sure you even generalise that about the top hot beat combos, and anyway it’s that “the rest” I’m talking about. Touring is really not a pot of gold. And as I’ve said on this subject before; what about music that can’t be toured? What of a musical project that isn’t “a band” at all?

    As to the rest; the limitations on illegal downloads are steadily reducing. It normally takes me a couple of hours to download a movie from bittorrent. I’m quite a fan of Battlestar Galactica. I got the whole lot off torrent, I get the new episodes off torrent, they haven’t made a red cent off me in either advertising or direct sales. Which is great for me, not much use to the people spending all the money to make the TV show. The legal market can’t rely on piracy being awkward. It just keeps getting better and better.

    The piracy issue, DRM etc interests me a lot as i have a business interest in digital media as mentioned above. The only system I’ve really used was quite a while back with a site that streamed movies and TV shows. Sadly after signing up I discovered most of their good stuff was blocked to non-US IPs for rights reasons (yawn) so all I could watch was their second rate stuff, direct to video rubbish and the like. And the porn section, and after a couple of months evaluating every movie in that to be sure it wasn’t my cup of tea I cancelled.

    Anyway, the DRM was irksome, only working with windows crappy media player, it had to phone home for licenses and things, PITA. I do demand that when I pay for something, it should be mine forever. So if DRM is to work, I think it needs a lot of refinement. I don’t think anyone has come up with a good answer. As a libertarian, I shouldn’t even be in favour of statist solutions like copyright, which is the one thing holding the piracy back just a little bit (I’ve used copyright threats to get pirate copies of my stuff removed from some download sites). I don’t know what the answer is, but ultimately creators need to get paid for what they do somehow. If they don’t, they have no business. But what the best model is, I have no idea. I’m just firmly convinced that it shouldn’t involve a disconnect between producers and consumers, for reasons I discussed above. Advertising supported services etc effectively have all the same problems as statist socilaism; the market doesn’t work. Ramble ramble…

    Tom and Jerry has canon?

  • The last toryboy

    End of music? Nonsense. The income stream is clear.

    Gigs and live performances.

  • Lee Kelly

    Let us not forget, if someone is not spending £10 on a CD, but 10p on a download, then that is £9.90 they have left over to spend. I think that much of that will be spent on more music, and more music related events and products. For those who really love music, a drop in price simply means that they can afford to buy more. The problem will be for the more casual listener, who would rather spend the difference in price on something else.

    There is a chance that good music will survive, and crap music will be screwed. (Again, offering an optimistic prediction).

  • Nick M

    I almost said the same thing Lee. I think you’re right.

  • Ian B

    End of music? Nonsense. The income stream is clear.

    Gigs and live performances.

    Yes, and while we’re at it, we can make movies free and finance them with theatrical performances by the actors.

  • Ian B

    Nick M-

    You can bang together a music video for next to nothing and distribute it for peanuts. I could do it this weekend and the only thing stopping me is that I have no musical talent whatsoever.

    Some other things you don’t have–

    Director
    Camera Crew
    Lighting Crew
    Grip, Gaffer, Best Boy
    Sound Crew
    Makeup Artists
    Lighting
    Power/Generator etc
    Transportation costs
    Site catering

    …and that doesn’t take into account all the time recording the song professionally in the first place. Big stack of peanuts, if this video’s more than you miming to Kylie into a hairbrush.

  • R C Dean

    Recordigs will still be made and revenue may still be generated from them. How?

    Broadcast. There is still an enormous and profitable radio (including satellite radio) industry.

    Download. I have noticed any reduction in paid downloading, but I don’t really follow it.

    “Hardcopies.” I expect there will still be a pretty sizable market for hardcopies for some time to come, especially for recordings that are longer than a few minutes (entire concerts, that sort of thing).

    And, of course, every city is full of musicians making a living from live performances without any appreciable income from recordings.

  • Julian Taylor

    Did it ever cross these people’s mind that what was on offer for nothing was complete and utter shite? I mean are they expecting teenagers to take any ole’ crap merely because its free. I think that attitude is indicative of the type of contempt music execs have for their customers.

    I think Andrew has it bang on. In all likelihood they refused the CD’s since they were most likely the sort of giveaway freebie garbage that was destined to be included in next weekend’s Mail on Sunday. If I go to EMI’s operational HQ in Brook Green I’m pretty sure I can pick up a giveaway promotional CD of EMI’s current release schedule – I would hazard that maybe that was the CD being offered.

    On a lighter note I was amused to read that EMI’s new CEO, Guy Hands, apparently told the International Federation of Phonographic Institutes (Britain’s RIAA) that he wanted to remove EMI’s membership since he could find no record of EMI having produced phonographs in the past 20 years.

  • R C Dean

    Oops. Should be “I have not noticed any reduction in paid downloading. . . .

  • Seems likely as music becomes cheaper, easier to distribute and easier to get hold of, we’re going to see more diversity and more chances for acts on a lower budget to make a bit of a breakthrough.

    On the other hand without big money backing bands are we really going to see any truly global “greats” any more? Personally, I can’t see the next Rolling Stones, Led Zeppelin, Queen, Madonna, U2 or whatever appearing through the internet.

    Think it’s more likely we’ll see more and more one-hit wonders and flashes in the pan, as internet fans are probably more fickle. Look at the arctic monkeys – an absoluteley massive album based on internet buzz, hugely famous for a while, already started to fade away with the second album.

    More to the point does it really matter?

    There was something along these lines in the Sunday Times a couple of weeks back, can’t claim this as my idea.

  • Martin

    Ian B:

    Yes, and while we’re at it, we can make movies free and finance them with theatrical performances by the actors.

    A particularly specious corollary. CDs will continue to be produced because, surprise, surprise, people want to listen to music. The EMI chap quoted above wasn’t talking particularly about CDs, more about young people’s attitudes to the pile of CDs; that they either didn’t want what the record label was peddling (a radical new idea) or that they had already downloaded said CDs. By “the game was completely up”, I would read “we really have no idea what these kids want”.

    Piracy flourished, and continues to flourish, because the industries involved (music, TV, film) do not offer the product the consumer wants through legitimate channels, so they get it elsewhere. Why should I have to submit to a higher authority to get permission to play something I’ve already paid for? Why can’t I buy a movie’s DVD when I’m leaving the cinema? I’m really not going to pay to go back in, so I come home and download it. The idea that its harder for a multi-billion-dollar company to pull off something I can do with a domestic broadband connection and a £20 DVD burner is ridiculous.

    I think there is space for musicians to make a living without record companies. You easily decry gigs and touring, but when CDs are sold at these concerts, who gets the lion’s share of the profit? Usually, its the band, instead of HMV and the label taking their respective cuts.

    The internet allows many more avenues for home-grown marketing than ever before; the labels are being cut out of the equation in every way they used to justify their cuts. Distribution; done. Marketing; done. Fansite; done. T-shirts; done.

  • Midwesterner

    Recording is cheap. I’ve checked out the equipment on eBay and it is possible to get the computer, mics, digital converter and everything for $1000 and still be able to record pretty good quality.

    Touring is astonishingly expensive. Just getting together the equipment for a traveling club act (amps, lights, transport, housing, etc) is tens of thousands and you need to get an entire band together and dedicated to a single schedule for a prolonged period of time.

    So if recorded product is ‘free’ and the money is in touring, then you’ve eliminated anybody who can’t generate enough interest to fund a tour from recording for an income.

    And has it dawned on anybody that recorded music and tour music are two entirely different things. Has anybody here (besides RAB) heard of the Wrecking Crew. While it is true that Glenn Campbell and Dr. John went on to make money touring, the rest of these guys made almost all their money in the studio. They didn’t get rich, but they fed their families. And before you think we can live without studio work, maybe you better look at the recordings they gave us. It turns out that much of my favorite Beach Boys guitar work was in fact Glenn Campbell working as a studio musician. And the band itself basically recorded nothing but the vocals. Carol Kaye and Hal Blaine each were on so many thousands of studio recordings that nobody really knows any more. During the window of time that they were operating, they were the source of a huge amount of what was sold to us (old enough to have been around) as the work of those guys on stage.

    RAB is right. Those tours sold albums.

    You can argue all you want about whether we need studio recordings, but any claim that touring bands will pay studio musicians to make top quality recordings is nuts. For the most part, the studio guys didn’t and couldn’t tour. But I would really miss their work. And to eliminate the studio-only musicians of the future would be a huge loss to music.

    I am confident that as long as we protect the right of contract, and that means enforcing contracts, then everything will be all right. But there are an awful lot of people here advocating that the government should not enforce contracts between private parties (the producer and the purchaser of the recording) because well, they haven’t really come up with a good reason for invalidating the contracts. They just skip that part or rationalize it away.

    I’m with Ian. If I want to stipulate terms when I sell you my product, I don’t want you to use the power of the government to invalidate that contract.

  • Did everyone see David Byrne’s remarks on all this a couple of weeks ago?

  • There is an interesting piece in the January Wired in which David Byrne talks about strategies for musicians to make money in the new environment. (He gives six different ones). There used to only be one way, which was sign with a large record company.

    The CD model was based on the idea that recording music and distributing music to consumers was expensive, and that storing and managing a personal music collection was difficult and space consuming. This situation led to it making sense for purchased music to have a high unit cost.

    With the change in technology and the advent of large (in capacity) and small (in size) hard drives, and music management software such as iTunes (the program, not the store), qnd the internet, and the collapse of the cost of distributing music, it suddenly made sense for people to have much larger music collections. This wasn’t inherently bad for the music industry or musicians (If there are ten thousand artists in the music ecosystem and the marginal cost of distribution is close to zero, it doesn’t make a lot of difference if your average consumer has a collection of 500 songs for which he paid $1 each or a collection of 10000 songs for which he paid 5 cents each – the total money coming to all those musicians is the same). However, the music industry had a business model and distribution system in place that was based on songs being expensive and having high value per unit. They were unable to abandon this model – they still haven’t abandoned it.

    I personally think that if the music industry’s response to the advent of Napster had been to put all its product online at five cents a song, its total revenues would not have dropped much, and most of the people who are now downloading music for free would be paying five cents a song for it instead. I can’t prove this, but I am certain the music companies would be better off than they are now. As it is, for good or for bad, we have a generation that doesn’t see recorded music as something that you pay for. This is entirely the music companies’ fault. They did not give their customers what they wanted, so the customers went elsewhere. The world changed, and the companies could not adapt quickly enough. That is their problem and their fault, and they deserve to die because of it.

    On a different tangent, and for whatever reason, big rock and roll tours today are making truly astonishingly large amounts of money for certain acts. The most interesting thing seems to be that it is yesterday’s bands rather than today’s that are making the most money. Bands whose fans are in their 40s and 50s and 60s can charge much more for tickets than bands with younger fans, on the basis that older people have more money. So we see such things as the Police and Led Zepplin, and lots of other bands who have not performed together in years or decades reforming. I am told that Sting and Stewart Copeland don’t get along very well. However, when what you are being offered is “Work with someone you don’t really get on with for a year, and you will make $20 million each” or some such, then people will work together. But that’s a bit of a digression.

    As a third digression, people who want to read a discussion in which people seriously start arguing that the lack of good music these days is George Bush’s fault should go to this discussion. (Page five, mostly).

  • Eamon Brennan

    Rab

    Actually it was the other way round Eamon. Bands toured to promote the album not to make money from the gigs.

    Depended on the band. Bands like Slade and Thin Lizzy, and completely different artists like Gloria Gaynor had a decent profile from singles success (low profit), but didn’t sell enough albums to stop touring. Hence their touring schedules were pretty much constant.

    Even today this bears out. Artists who nowadays sell a lot less than they used to, even those as different as Billy Bragg and Rick Wakeman still base their income around regular tours, not record sales.

    Bear in mind though that this is not the only outlet. Marrillion, for example, kept their career going long after record company interest faded by using their website to attract recording finance directly from their fans via pre-paying for proposed new albums.

    Eamon

  • RAB: free download is very different from radio airplay, because you cannot keep airplay and play it over and over, not to mention give a copy to other people.

    Martin:

    Why should I have to submit to a higher authority to get permission to play something I’ve already paid for?

    Because you can give a copy to other people who have not paid for it. Sort of like it is done with books, but we are talking very different numbers of people here.

    Tom and Jerry has canon?

    Ian, you, of all people? Nick, I am buying it too!

  • Billy: two minds with a single thought there.

  • Lee Kelly

    This is entirely the music companies’ fault. They did not give their customers what they wanted, so the customers went elsewhere. The world changed, and the companies could not adapt quickly enough. That is their problem and their fault, and they deserve to die because of it.

    Yes, it is “entirely” the music companies’ fault that criminals did not respect the legal contract they entered into when buying music, and that law enforcement authorities were either unable or unwilling to stop or punish those criminals. Those terrible music companies’.

  • Go into a record store and the diversity of music available is astonishing.

    You’re easily pleased Ian B.

  • Sunfish

    Yes, it is “entirely” the music companies’ fault that criminals did not respect the legal contract they entered into when buying music, and that law enforcement authorities were either unable or unwilling to stop or punish those criminals.

    Holy Christ I can’t believe that I’m still awake.

    What contract? About a year ago, I bought a CD. The Don Henley that had “Heart of the Matter” on it.

    I don’t recall signing any contracts. I dropped a picture of Andrew Jackson on the counter, pocketed my change, and left.

    I’m sure that I’d remember signing one if I did. Unless someone is actually presented with the terms and a chance to accept or refuse, it’s not a contract.

  • RAB

    Alisa, my point was the raising of awareness factor, but you are wrong about radio being different.
    My first tape recorder was reel to reel and I recorded Pick of the Pops every sunday. No different to a free download and we would pass them round to friends.
    Really Eamon, people toured to promote a high cost product (the record) as Michael says.The Record company organised the tours and had cosy deals with the venues and promoters, very little of which got down to the Band. Now they can negotiate for themselves.
    The Grateful Dead were pioneers of giving away their music. The record company did a crappy job of marketing them so they let anyone in the audience plug into the mixing desk for free.
    The gigs were always sold out, and they were the only band to my knowledge who kept a road crew on perminent salary.
    The Music business is a people business not just a product and cost of production business.The cost of producing a cd is the same for a record co whether they have signed Iggy Pop or Iggy Hughes. But they should be aware which will sell more. That is the expertese they should have, but since the amalgamations and the Accountants taking over, they have lost.
    Ian B has a point for some artists though. Those who Andy Kershaw likes so much. They arn’t going to make a living from downloads as it stands and they are probably performing as much as they can in Mali or Nigeria or wherever, but will never get the bread together to finace a tour of the West without big financial backing.
    Yes Ian B giss a link! I am a bit of a cartoonist myself. Show us yer graphics!
    Tom and Jerry!! The Fred Quimby produced ones only. The sixties ones were rubbish. Rolling background less frames per sec and no shading. Ian knows this of course.

  • Nick M

    Well, obviously, Mid it’s horses for courses and if I only want people wearing green top-hats to listen to the Nick M Band (me on the kazoo) then that should be allowed. The “I bought it, I should be able to do what I want with it” line has never had much legal traction with me.

    But, it does with the consumer, including me. Hence Sony pissing people off wholesale with their DRM schtick was a serious own goal.

    Touring is expensive but it’s scaleable. Obviously when U2 or Madonna embark on a World tour it’s practically a military operation (though last time Maddy was in Manchester a ticket was GBP175!!!) but it can also be four blokes in a van charging a few quid to see them. I don’t exactly see your point here but you do raise a very interesting one as to what this means for studio session musicians. On that score, I don’t really know. What I do know though is practically every bugger on this planet enjoys music, making good music requires a lot of talent and something in demand but rare always seems to command decent pay. Musicians will have to find a way here and I’m sure they will.

    This, though, is not exactly a new issue. I remember computer games circulating my primary school yard on third generation copied C-15 audio cassettes. Still, the games industry survived and indeed grew. I appreciate your point as to upholding the law but using the law against piracy of intellectual material makes the War on Drugs look winnable. The price and the value added has to be right to prevent piracy. For a very long time a chart CD in the UK cost about 15 quid (yup 30 bucks) – are you surprised people taped ‘em? I could be suffering false memory here but I seem to recall seeing a pretty big band like Iron Maiden cost pretty much the same as one of their CDs in the mid 80s. Ain’t that changed!

    I am more interested in software piracy… And well, frankly, every sodding thing on the planet gets cracked and ripped off. Now there are two ways to tackle this… You can stick the very small proportion of miscreants you convict in the oubliette or the software companies can (and they increasingly do this) offer added value such as upgrades, tech support and whatnot. As someone who has dealt with some seriously shonky set-ups in my time, well, I appreciate that now. Say a piece of ‘ware is a few hundred quid and you use it professionally then the tech support is worth it. I am not entirely sure how to generalize this approach to music but… I’m fairly sure it can be done.

    And this is how… I’m amazed Ian B hasn’t thought of it already. You use the same model porn sites do – a subscription service. There’s all sorts of stuff there, a forum, “exclusives”, “free” downloads, interviews etc. Now, obviously a committed, though criminal or potless, fan could accrue these by hanging out at Pirates Bay or whatever but… Let’s say it’s a fiver a month, is it worth the hassle and the time? The UK minimum hourly wage is more than that!

    Here’s another point along the same lines. I used to live in a rough(ish) part of town and a lot of folk were potless and would “acquire” (I never asked) computer stuff without manuals, drivers etc and ask me to set it up. Because one woman insisted I charged her 25 quid call-out to set-up a scanner from Noah’s sodding Ark. Also a couple of notes for a parallel cable… I knew full-well that at the time Morgan’s just up the road were banging out much newer and better HP scanners for 20 quid + VAT. This relic was not worth her expense. So I downloaded the drivers and bish-bash-bosh she was scanning soon enough. I’d told her about the Morgan’s deal but she seemed dementedly fixated on this piece of kit and my point is this nutcasery doesn’t happen too often. There is a value to convenience and most people will pay it if they perceive they’re getting value for money. If the music and ‘ware business does that their problems with piracy will fade.

    My whole point is that people selling ones and zeroes can protect themselves by making the piracy game not worth the candle to most people.

    But in anycase Bill Gates is worth $38 real big ‘uns and he did this by producing the most pirated products of all time. I’m not condoning this… but… Well, this is the world’s smallest violin playing for the ripped off producers of intellectual property on this point.

  • RAB: of course we passed it on to friends, but we did not pass it to millions other people with a click. Again, it is similar to books.

    Yes, the 60ies T&J are crap of course.

    Speaking of cartoons: 80 hours a week, Ian? You either enjoy drawing them very much, or there are very many other people who enjoy reading (is that the correct term?) them:-)

  • Nick M

    I’m a fair bit younger than RAB and I taped stuff off the radio too. The Fred Quimby T&Js are obviously the only ones. I used the word “canon” deliberately partly for that reason (I don’t regard the later ones as cannonical) and partly because to me they are as profound a part of Western culture as Bach or the Rokeby Venus or Shakespeare or Sherlock Holmes. For me there is no distinction between high and low culture. I am as sure there are several hundred years of music professors who have written symphonies which were rightly hastily forgotten as I am that people will still be listening to the Sex Pistol’s “Pretty Vacant” 500 years from now.

  • Nick M

    Alisa,
    At the risk of sounding puerile (Wot me?!) or frankly libelous I suspect Ian takes so long over his cartoons because (due to their nature) he’s doing a lot of off-hand mousing in Photoshop if you know what I mean.

    Give us a link Ian. I’m really curious ‘cos my only experience of naughty ‘toons is Japanese stuff.

  • The CD with ten songs on it that sells for $25 (where this is the principal means of music distribution) is an obsolete product. New technologies mean that there are much better (or at least much cheaper) alternatives to the music companies’ vertically integrated business model. That is the core of the matter. If there was no music piracy because people chose not to do it out of ethical qualms, or there was no music piracy because law enforcement was ultra-successful, this would still be the case. The music companies would still not be providing thie customers with what they want, and the customers would still be going somewhere else, namely to music produced outside the music companies’ system. They are doing this anyway, but in such a case it would have happened even faster, and the only choice for the music companies would be to change their business model.

    Failing to notice that the product they sell and the business model that goes with it is obsolete is the music companies’ great failing. The fact that they have spent the last five to ten years whining about how their decline was the fault of somebody else (ie the pirates) when they should have been noticing that the world has changed is precisely why the fault is theirs.

  • Midwesterner

    Sunfish,

    So let me see if I get this right. Either you left out something from your chain of logic or try this for size.

    Let’s say I own a gas station. I’m next to the interstate and my customers like to drive off without paying. So I won’t turn the pumps until I have their cash in hand. At that point, I signed no contract so I tell them to FO without the gas ’cause “I never signed nuthin’. There must be at least a few situations were a signature is unnecessary to make a contract binding.

    So let’s take a different sort of case. I take people’s money and let them into my theater to watch movies. The movie is over, I want them to leave. They say “No. I paid to be here.” And I say “Yes. For a designated number of viewings. One.” And they say, “I never signed anything. You took my money and let me in.”

    I think this “I never signed a contract” crap is one reason we are such a litiginous society where I practically have to sign a contract to get a cup of coffee.

    Do you really want to sign a contract for every interaction you ever have? There is a little thing called copyright. And it is as clearly established in the law as the property lines around your lot. Do you want to, instead of accepting standard property law, require a contract to make people leave if you ever let them on your property? We have this thing called ‘ownership’ that currently entitles you to order them to leave whether they signed a contract saying they would or not.

    I also presume that based on the logic of your argument when you have to click “I accept” to purchase songs in the future, that you’ll drop the entire argument about anything you please with CDs because you never signed anything.

    People have a right to set up idiotic business models and fail spectacularly when they place too high of demands on their intended market. There are a lot of people here who, whether they realize it or not, are basing their case on the idea that government should decide what kinds of contracts people may enter into. But only in this one narrow case. And I find the argument that we shouldn’t protect art producer’s rights because record companies are stupid to require substantial intellectual contortions.

  • Vinegar Joe

    Remember that great scene in Stallone’s “Demolition Man” where he’s riding around with Sandra Bullock and her partner and they’re listening to an oldie radio station and singing the Armour hotdog song?

    http://www.dailymotion.com/video/x3e4vl_demolition-man-love-commercials_shortfilms

  • Midwesterner

    Nick,

    I just read your comment again. What it amounts to is social engineering. It is this oft debated idea that “the market is broken, I have a good idea how to fix it.”

    No. The market is not broken. All we have to do is permit and protect the right of people to enter into contracts. The market will fix itself.

    Has anybody basing their arguments on “but it isn’t enforcible” given any thought to where that kind of ‘reasoning’ eventually leads.

    It leads to bureaucrats deciding what is best for us. After all, we need people to decide what rights are worth trying to enforce and what rights should better be abandoned.

  • In the begining there was live music,the artist and the gig,thence camest the technology to record the music.Soon didst people covet to magic new facsimiles of the performance.And lo,the smart realised that owning the technology to reproduce music and distribute it amongst the joyous populace would’st bring them in a bundle.

    There was joy amongst the accountants and stockholders and they waxthest rich for they could owneth the copyright of the artist’s work and and bungeth them a groat or two. For yea verily,the artist signed a contract limiting the artists rights.

    In the fullness of time didst a vast legion of record pushers,DJs invest the radio stations,eager to partake of the wondrous new thrifty option to playeth records and saveth money on the band.
    And it came to pass that a lack of record sales would screweth the artist and the record was the word,and thus it came to pass the record company createth the artist,sending him forth to perform a Runcorn Municipal Baths or the Poughkeepsie Abbatoir Workers Union social club,lo even unto the same night.Until ,as kine grinding the corn he falleth by the wayside.

    As the technology droppeth like the gentle rain from heaven trickling down unto even the most lowly,the artist could recreate his own image and still dealeth with the record companies.Who were most pleased since they had a monopoly on distribution,and for a few points of the monkey could save on recording costs.

    Now as it is easier for a camel to pass through the eye of a needle than a rich man,so it is for the artist to collect payment from the record companies.Who waxed fat and employed more accountants,who sayeth cut down thy back catalogue and dismisseth those artists who produceth not the big percentage profits.

    And lo,this was done,and Artist and Repertoire trawleth no longer the pubs and clubs for new talent,henceforth shall talent emerge from an advertisement in the Stage.

    Thence came forth the computer and the meek could henceforth inherit the earth.
    There was much wailing and gnashing of teeth amongst the record companies,there was a flash of light and once more there was live music,the artist and the the gig

  • Midwesterner –

    I basically agree with your argument, but I think you might be taking it a step too far in the case of CDs. When someone hands me physical property which I purchased, I assume that the right to dispose of the purchased property has passed to me (by “implied contract,” as you say). To continue you with your gas station analogy, once the gas is purchased and in my car, I think you the station owner lose any right to say what I do with it from that point on (unless this was made explicit in the transfer, of course). So – absent a sign that says “all purchased gasoline must remain in the vehicles into which it was pumped,” I am free to siphon purchased gas out of one car and transfer it to another (put it in a boat, burn it for heating, experiment with it, take a bath in it, whatever), right?

    Likewise, if the music company is going to say how you use a CD once purchased, I think this goes over and above the “implied contract” that I entered into at the point of sale. It needs to be very specific about the fact that in purchasing the CD, I am agreeing not to upload it, or copy it, or whatever else it is that they don’t want me doing with it. At the very least, this would seem to require a highly visible label on the CD. Absent this kind of a more enumerated, explicit contract, I apply the default “implied contract” of property ownership which is, “I bought it, now it’s mine to do with what I want.”

  • RAB

    Vinegar Joe. You have a very apt handle for this thread!
    I saw you (your namesakes) in 1971 in a Catholic Educational College in Nottingham around 1972.
    The audience consisted of us four guys who had driven over from the Uni. 6 Nuns and three lumpen Irish ladies who were well up for it, but we wern’t.
    It must rank as one of the least populated and appreciated gigs Robert Palmer and Elkie Brooks ever played.
    But they had an album to promote…

  • On the other hand without big money backing bands are we really going to see any truly global “greats” any more? [...] Think it’s more likely we’ll see more and more one-hit wonders and flashes in the pan [...] More to the point does it really matter?

    Not to me.

  • RAB

    1971, 1972? Well the times were hazy cold and full of powercuts three times a week ;-)

  • Colin

    I would maintain that the bulk of people buy music because they associate with the image of the artiste(s). Most of the value derived from music sales comes from image and brand, not the music itself. This is almost entirely produced by record companies which are largely marketing companies, not CD manufacturers. I don’t see demand for this brand association diminishing much in the near future. They will probably just tie their ‘products’ into tighter contracts so that they collect from all the revenue streams associated to that brand – it could go like the designer clothing industry with fashion houses who make money from selling perfumed water at inflated prices.

  • Midwesterner

    Content does not equal container. When buying ‘rights reserved’ cds, one is only purchasing the container. The content is rented.

    If people want to say that this is not being adequately conveyed at the time of purchase, then make that case.

    But many here sound like they intend to forbid producers and consumers from agreeing to that sort of transaction. Or that the government should refuse to enforce those contracts, which is effectively the same thing.

    We must permit and enforce those contracts and if there are not customers (do I really need to say this here?) the market will inform the producers of their mistake. Other forms of contracts will prevail. But telling consenting adults what kinds of contracts/relationships they may mutually consent to?

  • Eamon Brennan

    RAB

    Don’t mind me, I have only discussed this subject with Lizzy’s erstwhile manager Terry Neill, whom I spent and evening with in the early 80s, Billy Bragg, who is a client of mine, Rick Wakeman, whom I once won an evening with at a charity ball, Gloria Gaynor’s tour manager, on the occasion that I backed her playing a house band in a crappy club in Dublin and Gary Moore, who is a casual acquaintance.

    I’m sure you know best.

  • Nick M

    Mid,
    I wasn’t advocating any kinda social engineering. What I was saying was closer to an idea that fitting window locks and a burgular alarm is more likely to protect your property in certain circumstances than more money or powers for the cops. What I was saying is that the music industry is not helping itself. I was not saying they are within their rights to persue pirates legally but, fundamentally this would not be a business-buster or even a significant threat if they hadn’t been idiots for decades.

    The market isn’t broken in general but in recorded music it’s in utter turmoil because the record company execs frequently have no idea how to deal with the technological changes which are altering their industry. They are like 1950s airline heads who insist “You’ll never beat the airscrew”. Within my lifetime the British motor industry was one of the biggest on the planet. A couple of years ago BMW (their last “saviour”) sold the whole shebang for GBP10. A tenner! The market for cars is bigger than ever but because the abysmal nationalized UK car industry didn’t change over the years it ended-up being sold for the price of a couple of bottles of mediocre wine.

    Point is Honda are still going, so’s GM, so’s Tata (which just unveiled a USD2500 car, by far the cheapest in the World) and they’re going because their products have something going for them which BL, Austin-Rover, MG Rover or whatever the hell they called themselves didn’t. Well that’s part of it but what I really mean is that clearly there is a dramatic change going on in the retail music business and that not everyone in it will survive. The British car industry faced competition from better cars made abroad and it went under because they couldn’t compete with them. The music industry has a similar problem now because Internet killed the video-star and just as some non-Japanese car-makers are still with us some music businesses won’t be either.

    It’s adapt or die and if that ain’t a market-driven thing I don’t know what is. If Dell had carried on selling 486s for over a grand a they’d be history. If EMI et al continue to sell audio recordings for over market-rates then they’re finished too. It’s as simple as that. I fix PCs for a living. I might greatly prefer fixing Difference Engines but I’d be whistling for a living.

    Should the law protect these people – yes. Should they be reasonably expected to protect themselves? Obviously yes as well. Workable business models change over time and let’s face it DMR doesn’t work in exactly the same way that Ford wouldn’t even consider making a car that on purchase is permanently biometrically IDed to a single driver. I’m not, and wasn’t saying they don’t have the right I’m just saying the product would sink like a sodding stone in exactly the same way the consumers went light over Sony DRM or any number of utterly silly or outdated ideas like charging more than about a fiver for a CD or restricting it’s use in ways customers hate.

  • Nick M

    I was not saying they are within their rights to persue pirates

    turn that 180, me cock up bad.

    Mid,
    Your point in principle is perfectly right – I’ve read enough EULAs in my time… But it’s just a crap, useless, out of date business model and if you restrict that content too serverely people will jump ship. I recall software which was licensed in ways that prevented backing up the floppies (and you know how dodgy they were) it came on and whilst the companies had the right to do that it was despised by the customers. If you want to know a prime example of digital content protection that back-fired awfully just google Lenslock.

  • Content does not equal container. When buying ‘rights reserved’ cds, one is only purchasing the container. The content is rented.

    Except that in this case the content is the container. The physical CD I purchase is physically molded in such a way that any number of machines the producer knows I may own read out of it the music I want to hear.

    If people want to say that this is not being adequately conveyed at the time of purchase, then make that case.

    Yes, I agree this is the case they should make.

    It is indeed my impression that the nature of the purchase doesn’t adequately convey these conditions. Purchasing a CD is different from attending a movie showing in a number of ways – most notably that the whole point of a CD is that the listening privileges it grants you are not a “one-time” (or even a “one-listener”) event. CDs exist to allow me to recreate the event as many times as I like, possibly in different settings and with different equipment and different listening companions each time. It would be patently absurd for a music company to claim that the nature of the sale carried with it the implication I was prohibited me from, for example, playing it in my car because other passengers might hear it. They may, of course, impose this condition on my purchase if they like, but it needs to be made explicit since it is in no way implied in the transaction. Likewise, I don’t see anything about the transaction itself that implies I can’t upload or copy the CD. Music companies are aware when they sell CDs that the nature of the player means others may hear music they haven’t paid for (at parties, etc.). They presumably allow this to continue because it is free advertising. But my right to play the CDs I purchase on an open stereo is not something that I deduced from the seller’s advertising interest, but rather just from the fact that I own the CD and also own a sound system with speakers capable of playing it. If they don’t want me copying it on my computer and sharing it with people I meet on the web, then these are conditions that they need to expressly impose.

    We must permit and enforce those contracts and if there are not customers (do I really need to say this here?) the market will inform the producers of their mistake. Other forms of contracts will prevail. But telling consenting adults what kinds of contracts/relationships they may mutually consent to?

    Completely agree. A sale is an implied contract, and sellers have the right to impose conditions on use after sales as part of the terms of the sale. I am just concerned that we not take this principle of “implied contract” too far. The provisions of implied contracts shouldn’t be things we have to work too hard at reasoning out, and they obviously shouldn’t afford the seller arbitrary powers of interpretation, such that he can ex post facto include all kinds of esoteric clauses that were not clear at the point of sale. To me, this means keeping at the level of “physical thing sold = full transfer of disposal rights to purchaser unless outside conditions are made clear.” When I buy a physical object such as a CD, therefore, the seller needs to make clear that certain uses of that physical thing are prohibited.

    I regularly burn copies of CDs I’ve purchased for friends and receive similar copies from them. I do not generally upload music for public redistribution – mostly because the music industry has made clear (in wholly inappropriate, threatening ways, I must add) that they impose the condition that I may not do so. Nothing in my buying of a CD implied to me that it was a “container” and that the content was “rented.” This was something that only became fully clear once the RIAA got the police to start knocking heads for them.

  • Vivictius

    Part of the problem is the recording industry has been trying to change the rules. No one cared if I copied my old tapes or made tapes off the radio. Now they want to toss people in jail for the same thing. They are not bargining in good faith, therefor, not contract with them, implied or otherwise, has any meaning.

    It is the same with EULAs, you are suppose to click that you “understand and agree” with it. The are written in leagalise nonsense, NO ONE who isnt a lawyer understands them.

  • Midwesterner

    I guess my point is getting lost.

    First, the content is not the container. Whether the content is fused to it or not does not alter the fact that what is being purchased is not a CD, but information conveyed on a CD. And CDs are like movies in the way that matters. You do not own a movie after you see it. You purchase an entertainment experience. The same applies to the CD. You are purchasing the entertainment experience. How many times you may repeat that experience under the terms of the contract doesn’t change the basic nature of the transaction.

    As more and more sales of entertainment and other IP are being made over the internet, we have to click on those heinous (but philosophically supportable) “I agree” contracts. In the past these contracts were standardized as fair use. But now, with everybody suing for everything and saying “just try and stop me” we will see these in every transaction. I personally preferred the old way where the terms where pretty well understood to mean you couldn’t make any money off of your use of a recording or do anything to infringe the owner’s ability to make money with it, but other than that you could pretty much enjoy it as you like.

    But I guess the time has come that there has to be a written and agreed to contract for everything. I don’t much like it but I don’t see an alternative.

    Nick,

    I’m hearing all these (not just yours) plans to ‘save music’ and I’m kind of fogging. It is like listening to Mitt and Hillary debate what is the best health care plan. And I just want to throw something at the screen and yell at them It’s none of your ^#$!)*_%^* business!

    There is no place for anybody but the producers of the music to be deciding how to market their product. Yes, I agree the companies are greedy, stupid, blind, ripping off artists, blah, blah, blah. So what? NMP. NYP.

    But I energetically reject the idea that we should use selective enforcement by the state to compel people to stop engaging in certain sorts of transactions. The idea that certain rights are too expensive to protect is an incredibly dangerous precedent to set. I do not want the government putting a price tag on any of my rights and then using that unilateral decision to decide whether I merit its protection. I do not believe the government (hence, taxpayers) need to go looking for contract violators, but when a violation is reported and evidence is presented, then the sole responsibility of the government is make its verdict in that particular case and on the terms of that particular contract. I do not want society imposing its ‘better judgment’ on whether it was a sensible contract.

    Vivictius,

    Not totally true. The companies did not get upset if I rerecorded Muswell Hillbillies onto a more convenient (for me) media. But they have always blown a gasket if I started mass producing those copies. It is because everyone on the internet can distribute gazillions of copies of a song that they went nuts.

    I agree about EULAs, but they are a consequence of people ripping off product. It’s like picking someone’s pocket and then getting self righteous when they move their wallet to their front pocket.

  • trevalyan

    I think a lot of record companies are completely losing at the idea of deciphering what people do and don’t want. Looking at an average day, where most of the music I listen to is either on my MP3 player, my satellite radio, or on the Internet on web sites/ Youtube, it’s no wonder that I don’t much care for the major pop acts.

    Handing me a CD, unless it’s by someone I really like and want to take home and rip to MP3, is like handing me a plastic drink coaster, at this point. I’d just as soon find a USB or SD port, plug in my stick, and download a song in seconds. In an age where a whole CD can be downloaded at breakneck speed, I want the option to pick and choose the songs I’d like to listen to, instead of paying fifteen bucks for a CD with maybe one decent track on it. And if your product is going to carry so much DRM I can’t even watch a legitimately purchased Family Guy DVD on my computer- well, you’re shooting yourself in the foot when that happens.

    I don’t think there’s a lot of computer gamers here, so I’ll point to GalCiv2’s experience with DRM. People who not only treat their customers maturely, but put out kickass product, are going to profit. As people tune out FM radio and go searching for their own musical preferences, the record companies are just acting like they have a death wish.

    Oh, and I’ve noticed how quick they are to resort to government/judicial pressure to try and crush the new wave of innovation, rather than ride it. It’s honestly made me much less likely to purchase a lot of music in general.

  • The idea that certain rights are too expensive to protect is an incredibly dangerous precedent to set. I do not want the government putting a price tag on any of my rights and then using that unilateral decision to decide whether I merit its protection.

    Though this exact precedent has never been set, similar precedents have long been accepted. See, for example, Warren v. District of Columbia, 444 A.2d 1 (D.C. Ct. of Ap., 1981), which states that the police are not required to respond to all complaints, only to provide “general protection.” In addition, the Justice Department regularly directs federal authorities to selectively enforce some laws and drop enforcement of others. This was, for example, the reason that marijuana possession and pornography arrests dropped significantly during the Clinton years (medical marijuana arrests were as good as nonexistent). Bush I instructed federal authorities to aggressively enforce pornography restrictions, Clinton decided the feds had better things to do. It has been working this way for some time.

    Just to be clear, it’s not the same as saying that the government may decide to completely ignore certain laws. But if they decided to generally ignore RIAA complaints, it wouldn’t be the first time they had been less lackadaisical in their approach to certain select regulations.

  • Midwesterner

    Well… That seem to pretty much support the idea that we really don’t want government to have that degree of discretion, doesn’t it?

    Personally, I don’t even think we should have taxpayer funded police but that is a whole separate topic.

    And no, I don’t think it is good that Clinton chose not to enforce laws we disapprove of. Selective enforcement simply gives the power trippers more weapons to selectively enforce against their enemies and opponents.

  • RAB

    Eamon dont be like that!
    I rather like you. But I have written for Sounds, NME and Melody Maker in my time, and have seen EVERYBODY.
    The fact is back in the old days, a support bands management would pay a headliners management to be the support. Just for the exposure. This helped defray the costs to the headliners and get vital exposure for the newcomers. The pay off was when they started to get radio plays off their own bat and therefore people buying their records.
    This is how it worked. Spotty oiks, desperate for sex and riches spend a little time in their bedrooms learning a few chords. They find a snappy name and tour the local toilets for peanuts. Their mates tell other mates and pretty soon they have a bit of a following.
    Then they coerse the likes of me, music journalists along to see them.
    They get a favorable review (maybe. I am tough but fair!) and that gets them to play slightly better toilets cos they have something to show the promoters. Nobody wants to play to an empty room. See the Vinegar Joe anecdote above, and that leads to the magical record contract and everyone lives happily ever after. Except they dont. The million pound advance pays for everything. It is not free money unless you are the Sex Pistols and manage to collect the cash without doing any work for it. Just getting fired for being controversial (nice work if you can get it!) Wages, travel, recording costs, gig hire the lot. All that expenditure came from the record sales not the Gig take, and if you dont sell records you were dropped sharpish.
    Bands dont need to do that anymore.
    They can do it for themselves.
    My regards to Billy. Another nice man, if of the opposite end of the spectrum to Joe Jackson, who we discussed on a previous thread.

  • Say Al Gore had not invented the Internet, and so we could rip bought CDs to computers, and burn them to blank CDs, but there was no way to distribute them digitally from one computer to another. Would it be OK if I bought a CD, riped it, burned millions of copies, and gave them away for free? Yes, it does sound like too much trouble, but just because Al Gore made it so much easier and simpler, does not make it right. Imagine the above scenario applied to books in the old days. Would it be right for me to print millions of copies of the latest best seller I just bought, and give them away for free? I don’t think so. Mid is right: you own the “container”, i.e. the plastic disk/bunch of paper, but you don’t own the content (music/novel). You are free to use it for your enjoyment or education, but you don’t own it. And no, strictly speaking, it is not OK to let a few friends borrow the CD/book, but the financial damage to the /author/artist/publisher/producer is too minuscule to bother with something that cannot even be enforced. Now, none of this is obvious: if someone told me 20 years ago that distributing music without the need for a physical medium would be possible, I would have said “SciFi”. So yes, the record companies would be wise to put a sticker on explaining it.

  • RAB,
    Back in the Real Old Days,you couldn’t get anyone in the music business to travel north of Watford Gap.Headliners were strange alien beings from America who wafted across the newsreels as they landed at Heathrow.Even after Larry Parne’s stable made it nationally the oiks on the other side of the Great Wall of Watford could only Brylcreme their hair in the hope of blagging a chick.Gigs were strictly youth clubs,pubs social clubs and the odd jazz club if you played skiffle.
    There were recording studios on the other side of the wall,they were used to cut directly to disc songs for girl friends and parents .But basically,if you didn’t have an in you didn’t perform South of Watford Junction.
    Yes a few managers A&R,music journalists promised to come and see us play but,the seemed to have so many sick friends they had to visit in hospital
    Wasn’t until the Liverpool sound broke that the music business to note of bads outside the London area.

  • Rihrd Thomas

    They sell lettuces at the supermarket. It’s perfectly possible for me to produce lettuces of similar (or even better) quality at my own home for a significantly lower price than the supermarket sells for. Yet still I will choose to buy lettuces at he supermarket. There’s a lesson for the so-called “intellectual property” industry there.

    Actually, quite a lot of people do grow their own lettuces and yet still a thriving lettuce industry exists without having to induce the government to persecute those who do grow their own. Another lesson there too.

  • Ben

    I hate that I got in towards the end of this discussion, but as a lawyer I have to say that the commenters who suggest that purchasing a CD creates an implied contract, particularly a rights reserved sort of contract, you are absolutely and unequivocally wrong.

    This issue has been hashed out extensively, primarily in the arena of post-purchase sales contracts, such as EULAs accompanying software. It has been incorporated into the UCC and other international treatises.

    But the gist of the matter is that for a contract to be formed, both parties have to realize that the contract exists, that they are agreeing to it, what the terms are, what the price is, etc. This can occur by posting some sort of warning on the packaging that there are additional terms to be agreed to post-purchase, but by law if the consumer doesn’t want to agree, he is entitled to a full refund. That would probably be worse for the record companies than the status quo, because consumer could take the product home, open it, rip it, and take it back. The physical nature of the object would prevent there from being any evidence as to whether the disc was played or not. Notably, record companies haven’t tried this approach.

    Further, the idea that consumers are purchasing content licenses is problematic because once you own the license, you have a right in the content, not in the item and media format. Under this sort of regime a license-holder could purchase movies at a discount on vinyl, cassette, VHS, or Betamax, and have a license for the content in whatever format they wish. Notably, record companies haven’t pursued this approach either.

    They can’t have it one way or the other. Media companies can’t assert they are selling a product, which you have to buy individually on VHS, DVD, Blu-Ray, or whatever else, and simultaneously assert that they are selling you a license and not an object.

    I hate to hear people assert their opinions about the law as if they were fact. If you are a content producer and wish that the nature of contract law inured to your benefit, your mere desire doesn’t make it so.

  • Nick M

    Alisa,
    You underestimate the power that sneakernet had. The number of computer games copied at my school was phenomenal and well, say everyone who gets a copy, copies it for two mates…

    Mid,
    But it’s not a genuinely enforceable law. Not without internet censorship… Now, I appreciate that I have no right to tell EMI et al how to run their business but I kinda thought the whole point of this thread was to discuss the music biz…

  • Faith+1

    It’s not the music business that is over. It’s the music distribution business.

  • Midwesterner

    Rihrd,

    Pick up your crayons and go to bed. You shouldn’t be playing with the computer.

    Ben,

    There was a time when the copyright symbol, which was and is clearly displayed on the outside of all of the packaging, meant something.

    There was a time when purchasing a package with the copyright symbol on it meant you were buying something protected by the copyright laws.

    I have no doubt from your insistence that the property boundaries defined by copyright law are meaningless without written contracts, lawyer approved warnings on the packaging must go into every detail, and claims that people are legally entitled to purchase a copyrighted CD, take it home, rip off the contents, and return the packaging because it didn’t have the right lawyer approved, fully detailed contract on the wrapper, … that you are in fact a lawyer. And that you may claim credit for being one of the profiteers that have turned us into this society of contracts and waivers of liability to buy a cup of coffee and lawn mowers that have labels on them saying “don’t use this lawn mower to trim hedges”.

    This is the way that the John Edwards of the world want it to be. And this is the way that they (and presumably you) have made it. That doesn’t mean it is morally or rationally sound.

    My dad bought a farm on a handshake and a promise. Twenty years later he sold part of it with clever lawyers sitting at long tables making sure that all the things you describe were properly done so a clever lawyer couldn’t use tortuous legal constructions to rip somebody off. Are you proud?

    Used to be a list of lot lines or a lot number and a bill of sale was enough. The last house he sold had a contract running probably ten to fifteen closely printed legal pages with several attached legal documents. All to the service of repeating the obvious.

    I said it before and Ben here has affirmed, property means nothing when there are lawyers around.

  • Midwesterner

    Nick,

    Sneaker net was a very short lived phenomenon in the course of copyright history. The market hardly discovered what the word meant before it had been replaced by internet.

    All the enforcement requires is for courts to render the verdicts that reflect the contracts when suits are brought. As our friend Ben makes clear above, the obvious ain’t good enough, we now need to require people to sign lawyer approved contracts before we let them handle a copy.

    Although if you follow his ‘reasoning’ to its logical conclusion it will be possible for renters to sell their landlords houses unless they have, in every case, signed a contract saying they won’t sell his house. That is why IP needs to be treated as surveyed property but we live in a world of lawyers. Sigh.

  • Sunfish

    Midwesterner:

    All the enforcement requires is for courts to render the verdicts that reflect the contracts when suits are brought. As our friend Ben makes clear above, the obvious ain’t good enough, we now need to require people to sign lawyer approved contracts before we let them handle a copy.

    Except for one thing: it’s NOT OBVIOUS.

    I’m looking at a CD case right now: Los Lobos “Just Another Band from East L.A.” The label does not include a contract anywhere. The closest I can find is “All rights reserved. Unauthorized duplication is a violation of applicable laws.” “All rights reserved” says nothing about which rights these are. I guess you could read it as an attempt to incorporate rights written into law somewhere, but where? And the label also doesn’t say what constitute “applicable laws.”[1]

    When I bought it, I bought two plastic discs with certain data stored on them. I didn’t see anything, other than the above expressing any claims by the copyright owner. If he wanted to claim something, he should have actually explained what he wanted to claim rather than throwing out a vague reference to undefined laws and hoping that people who believe in property rights rally around him.

    Think about the farm sale that you reference above. I’d be willing to bet that your father and the guy who sold it to him at least had a common understanding of where the property lines were located, before that handshake. Not to mention a common understanding of whether the previous owner would continue to have any right to the property after the money changed hands.

    Do you really want to sign a contract for every interaction you ever have? There is a little thing called copyright. And it is as clearly established in the law as the property lines around your lot. Do you want to, instead of accepting standard property law, require a contract to make people leave if you ever let them on your property? We have this thing called ‘ownership’ that currently entitles you to order them to leave whether they signed a contract saying they would or not.

    If the terms of any given deal aren’t obvious, then fine. The existence of a property line governs how close someone can come to my door pretty clearly.[2] However, I think the boundaries of my lot and my stuff are a lot more explicit than some vague reference to “all applicable laws” printed in 4-point black type on a brown label.

    I also presume that based on the logic of your argument when you have to click “I accept” to purchase songs in the future, that you’ll drop the entire argument about anything you please with CDs because you never signed anything.

    That’s when I pocket my money and tell the salesman that he can roll up the CD and see where it fits. When the terms become unacceptable I don’t perform the transaction. Just like when I walked out of Great Clips a month ago because they claimed that they couldn’t cut my hair without my home address. The problem is, the copyright owner so far seems to be claiming the existence of terms that he hasn’t disclosed, after money changes hands.

    [1]Bear in mind that the Constitutional provision authorizing copyright laws explicitly says something other than forever and ever, also. Somehow, I don’t think that specific provision meant ‘lifetime plus seventy years’ either.

    [2] Adverse possession and Open Range nonsense aside: I think I promised Perry an article about that a month ago. Oops.

  • “It’s not the music business that is over. It’s the music distribution business.”

    Exactly,and a very healthy development it is a s well.Minority artists now have a world wide market that makes it economical for them to record.Whilst the big record distributors may not be able to market anal kazoo music the web will be able to find the fans.

  • I’m a musician, so I can tell you this isn’t the end of music. Things have never been better for me as a musician, in fact. Today technology allows me to record at home instead of in an expensive recording studio and get better results because I’m not in any kind of hurry. The sound quality is better than ever as well. I still have CD’s made, and I sell them at my gigs. I have 100% control of the content, artwork, liner notes, &c. and they cost me a little over a buck apiece including paying a professional photog for the cover shot.

    Musicians today are finally free of the tyranny of the record companies and commercial radio. This is a very, very good thing. Good for music fans as well, since there have never been more choices, and due to digital distribution online, they are easier to obtain as well.

    It’s just the model that’s changing, and like all dinosaurs, the record companies aren’t able to respond fast enough to adapt and survive. I, for one, won’t be shedding any tears over this.

    I think I’ll go to the range today and use a few old CD’s for target practice.

  • pouncer

    Isn’t is as much a “form fACTOR” thing as economic? If I can have a little thing that doesn’t burn up batteries and holds 100 songs on one SD chip — or a big thing that takes 6 batteries a week and takes a fat wallet of CDs to carry the same hundred songs, well thanks, but I won’t buy that player and I won’t buy the media for it.

    Sell me a sufficiently cheap SD chip with 20 or so really good songs at the same price as a current CD, and MAYBE I’ll consider it a competitive product.

  • redherkey

    The recording labels have been missing a major issue – it’s not just that their distribution format is challenged, but the entire model they represent of “seasoned industry screeners” selecting artists based on the label’s tastes, deeming them worthy of production, controlling their contract and shuffling out a dozen tracks every 2-3 years is no longer viable.

    Worst of all, their capacity to screen, select and control who becomes an available artist has failed completely. They’ve invested millions in Britney, Michael Jackson and other losers. Having been at events where the industry reps gave away CDs, I can assure you they were most likely from this category.

    Metropolis Records, which has done exceptionally well in the new model, represents an entire music format that the major labels have ignored. They fully support streaming stations through the permission of royalty-free Internet shoutcasting. To my detriment, it has resulted in an average of five CD purchases a month over the past five years since every time a new artists comes on, you’ve just got to buy the whole thing.

    Metropolis has fully recognized the new distribution format, appears to understand that P2P is a viral marketing channel that brings individuals who are candidate customers to them and recognizes those that do not buy while filesharing mp3s are an immaterial loss. Check out their artists if you like synthpop, industrial, EBM, gothic, futurepop, etc. at http://www.metropolis-records.com – if you’re like me and loved 80s artists like Depeche Mode, New Order, etc., you’ll love many of these artists and better yet, appreciate that Metropolis supported them while the big boys ignored these artists.

  • becky

    I don’t have time to read all of the comments but as for the comment that there will be no more music it simply ignores the reality of supply and demand.

    There are literally millions of people in the world that can and want to create beautiful music. In the past the cost of having your music produced and distributed was very high. Now it is low. Anyone with talent (or without) can produce music and distribute it world wide with very little capital. This is the REAL problem for the music industry. In the past the music industry controlled production, distribution and promotion. They no longer have the ability to do that.

    Go to your local college or any one of millions of churches on Sunday and you will likely hear voices and music far more beautiful than much of the noise that I hear on my radio. Sure, many more millions of those performances may not be that great, but the point is that there are millions who have voices as beautiful or more beautiful than Madonna or Jewel.

    In the past what separated Madonna or Jewel from Suzie with a fabulous voice in the choir was simply that the only people who got to hear Suzie sing were those who went to her church or local performances. Ie: Distribution and Promotion.

    The bottom line is that there simply is no lack of supply people who have exceptional music talent. There are many in every city worldwide. All that remains for these people to be heard by more than just a small circle of friends is promotion. Production is easy and distribution is just a file share click away for the entire world to hear. If you can not control the production, the supply will increase and though the big players can increase distribution through phones or freebies, they no longer have control over distribution as they did in the past.

    As my mom will say, cream always rises to the top. In the past, weenies in board rooms got to decide what was cream. Now I get to decide, by myself, without their help, thank you very much.

    Thus, in this century, it will be all about promotion . Thus it makes sense to me that obtaining advertising will be what puts the pennies in the pockets of those with talent.

    It is the same threat for the music industry that it is for the newspaper industry. They simply can’t compete with the supply of good writers and writing available from those who have the talent and time and a desire to publish. The cream will rise and the advertisers will follow. The corporations will sponsor those whom bring eyes to their products.

    The music industry and the newspaper industry need to realize that if they want to survive, it will be in an editorial function, weeding out the wheat from the chaff and putting it together in a nice, easy to access format that draws eyes and ears to their sites, supported by sponsors and advertising dollars.

  • klj3whh9hg86t

    The record labels have been cheating artists and customers for years and years and years. This is the result. They have no one to blame but their greedy own selves.

  • mCrane

    CD’s are currently the only available source (with some exceptions) of high quality recording. I copy them with a loss-less format onto my MacBook Pro and use an optical link from it to an outboard headamp DAC (by HeadRoom) and listen on my Shure 530 earbuds. Wonderful, glorious sound.

    There is no commercial equivalent. My current problem with a lot of music on CD is that they are being recorded and compressed to sound “good” on mp3 at 128 bits. And the compression ruins the sound. 128 bit is NOT “good sound”.

    I would be willing to have free 128 bit mp3 and would pay for loss-less (1000 bit) uncompressed music files to play on good equipment. Good music sound is ethereal bliss. Music can sound so much better than the 128 compressed mp3; like night and day, as they say.

    And to those skeptics of high quality sound I say, if you can’t hear the difference, don’t spend the money. But a part of me would die if I couldn’t listen to the good sound of great music.

  • andrewdb

    I am sorry I am so late to this party – but the missing concept I do not see here is that this is “digital” which means that, unlike the gas in my car, I can duplicate the music and distribute that and still have what I bought. There is little to no scarcity (and that has implications about price in a supply and demand world).

    I am too tired to write a long essay about it, but I think there is also something to say about legal rights that do not reflect the “social contract” – which is poorly phrased, but by which I mean that it is nice to have all sorts of legal rights and “contracts” but if the vast majority of people don’t agree with them they will not be (easily) enforced. See 55 mile per hour speed limits – and yes I know we are talking about respect for private property here, not the general police power of the state (well, except if you ask the police to enforce your private contract).

  • Bruce

    Buying music/film/video games and then uploading it to the internet, where a thousand others download it for free, is stealing from the artists and those that support them. So is “just” making a few copies for my friends.

    It will kill the goose that lays the golden music/film/games.

    Trying to rationalize that it’s the industry’s fault that it’s now so easy to steal their content is blaming the victim, pure and simple.

  • Eamon Brennan

    Hi Rab

    I rather like you too.

    And at least we agree on something here. Mr Bragg is indeed a thoroughly good bloke, although we mainly tend to talk about parenthood rather than music.

    Eamon

  • I am sorry I am so late to this party – but the missing concept I do not see here is that this is “digital” which means that, unlike the gas in my car, I can duplicate the music and distribute that and still have what I bought. There is little to no scarcity (and that has implications about price in a supply and demand world).

    The bit about gas in the car was trying to illustrate that the “implied contract” Midwesterner was talking about as it applies to transfer of physical property imposes no conditions of use on the purchaser. It was not an assertion that gasoline is like digital music. (And in fact, the discussion was about CDs, not downloads. The additional conditions imposed on the sale are clear in the case of downloads). The point was just to stress that when you sell physical property (such as a CD), absent any further clarification the purchaser is allowed to use the property in any way he sees fit.

    While I’m at it, I would like to add that I find Midwesterner’s argument above about the copyright symbol convincing. And indeed, the fact that I had forgotten the copyright symbol on albums only serves to bolster the argument that we’ve passed into a society where things have to be spelled out to something of an absurd degree.

    That said, I tend to agree with Sunfish that “all rights reserved” is not sufficiently clear (it seems deliberately worded as to be elastic – i.e. it fits whatever claims they can get away with in court), and that the display of these symbols and claims is in any case not very prominent. Caselaw about what constitutes acceptable copying has been decided in court several times over the years, hardly a situation that inspires confidence that the “rights” being mentioned are clear and agreed upon to the point where I know what to do to avoid being prosecuted. I think it would be in everyone’s interest for the record companies to spell out in a public statement exactly when, how, and to what purpose we are allowed to copy their CDs. I find it implausible, for example, that they object to my making a backup copy for myself, uploading it to my various computers for personal use, lending it to my friends, or playing it publicly at private parties. But what about uploading it to the computer in the office for use while there? In the good ol’ days Midwesterner talks about, I suppose they wouldn’t have minded that either. But now we’re at a point where they might, just to keep their backs covered against nasty precedents. It’s getting to be a legal morass. That is indeed unfortunate – but it is also real, and I think for that reason some clarity from the seller’s end is in order.

  • Tom Perkins

    Midwesterner, when Rihrd wrote about lettuces, he said something true and important.

    When you wrote, “Rihrd,
    Pick up your crayons and go to bed. You shouldn’t be playing with the computer.”

    That was you and Big Media sticking your fingers in your ears and saying, “La La La La” in a sing song voice.

    Then you wrote:

    “There was a time when the copyright symbol, which was and is clearly displayed on the outside of all of the packaging, meant something.”

    And then the Big Media executives paid off Congress to change the meaning of the copyright symbol out from under the general public, and the general public’s perception of what that contract is hasn’t caught up with the change.

    What symbol means to me is that I get to make as many copies of the content as I like in order to archive it and enjoy it in as many formats as I own players for. I don’t get to give a copy in any format to anyone else for their enjoyment for an indefinite period of time.

    Instead, I saw the other day that one of the Big Media companies was saying that I don’t have the right even to put a CD on my harddrive and listen to it from there.

    Screw that.

    If Big Media actually starts to enforce “copyright” in that fashion, I’ll forego owning music altogether, because it’s not worth losing my house over it, and I won’t pay off an extortionist if I don’t have to.

    This is what you need to remember; your business model is dependent on a legal fiction, an assertion by government, not a natural right.

    If you make an assertion that enough people find to be illegitimate, honest people won’t do business with you, and dishonest people will rob you. If you make an assertion that is illegitimate enough, honest people will “rob” you and feel good about it.

    Big Media has made the assertion that in an age when digital media formats are incredibly inexpensive to make use of, that it will stay business as usual for them–that won’t fly.

    Change or go out of business, but don’t try to sell to me the idea that you get to freeze time to stay in your comfort zone.

  • So what do my kids listen to these days?

    Sixties music. It is not downloads that are killing the business. It is the fact that the A&R guys no longer nurture talent.

    Just as yourself – who is filling stadiums these days? It certainly isn’t any bands from the young generation.

    Tone deafness is their problem way more than digital distribution.

  • Ian B

    Sorry if this has been addressed, i’ve skipped through the later comments in this thread–

    And this is how… I’m amazed Ian B hasn’t thought of it already. You use the same model porn sites do – a subscription service. There’s all sorts of stuff there, a forum, “exclusives”, “free” downloads, interviews etc. Now, obviously a committed, though criminal or potless, fan could accrue these by hanging out at Pirates Bay or whatever but… Let’s say it’s a fiver a month, is it worth the hassle and the time? The UK minimum hourly wage is more than that!

    Piracy is a very serious problem for porn sites. It especially hits the smaller sites with less content- e.g. a particular model with say 2 photosets per week, since they’re easily pirated. People upload “update packs” to sites like Puretna and so on. The only real strategy to combat it is trying to convert one’s subscribers into “fans” who’ll support you out of loyalty. That works to a degree, nonetheless a lot of sales get lost. There’s a myth of the “porn baron” (a baron being anyone who has a business that is disapproved of and is always portrayed as living a Hefneresque lifestyle). The reality is most porn sites are not making vasty amounts of money and, especially with all the backroom governmental pressures the industry is far from the glory days it was in a few years ago.

    Copyright law is a small help, since at least the “file download” sites are cooperative in removing files, if you find out about them. Google are total assholes though- some kid sets up a blog on their service, fills it full of pirated links, you ask them kindly to take it down, and you get furious lawyers’ threats back. It always makes me laugh people going on about the Microsoft hegemony. Google are 10 times scarier. Never trust a liberal corporation. Heh.

    So anyway, there are lots of business models that function on the net, like the subscription model, but piracy seriously undermines them. What can be done about it, I do not know. But it’s sad when a business model fails not because of poor product or a bad business plan, but simply because of unstoppable theft.

    Ian takes so long over his cartoons because (due to their nature) he’s doing a lot of off-hand mousing in Photoshop if you know what I mean

    Wow, haven’t heard that one before. Really.

    Since there’s been a couple of requests my main (pay) site is Not Safe For Work and is here. It contains no hobbits.

    I also did an experiment with giving stuff away, free daily “funny” adult cartoons here which was really a bit of a disappointment in terms of traffic, but one or two people have found them quite entertaining.

    Apologies for impugning Tom And Jerry. It’s just I’m a bit of a Trekkie so “canon” to me means arguing about the power output of the warp nacelles or whether Kirk’s quarters are on Deck 5 or 12, so the idea of that depth of “canon” in T and J seemed a bit surreal.

  • Tom Perkins

    “Just as yourself – who is filling stadiums these days?”

    Boomers who can pay $200.00 for a ticket for the music they want to hear, from the glories of their youth? As opposed to teenagers who likely won’t pay $100.00 to sit in a seat when they could dance with their friends for near free instead?

    Today’s music isn’t the problem, the business model is.

  • Ennis

    I think that there are a couple of things going on here. (I am using the term CD because I really don’t know what a compilation of songs by a single artist released at the same time should be called now.)

    1. With the advent of digital downloads what we have now is a “singles” market. The majority of people only want one or two songs off a “CD”. The majority do not buy the whole thing. Sorta sad really because I have found that many times I bought a CD for one song and found one or two that I liked better then the one I bought it for.

    People want the most “bang for their buck” so they will buy 10 songs they know they like by various artists rather then an entire “CD” by one artist where it might be a dice roll as to whether or not they will like the other songs on a CD.

    2. As others have pointed out the variety of music available is huge. And people have different tastes. The old brick and mortar stores can not stock everything that people might want because it is not cost effective. In my situation I can go to a record store and generally find nothing I want to buy anymore because my tastes are quite different then the “mainstream”. So instead of wasting my time going to the store I just buy all my music online now.

    3. The music industry is run by a bunch of arrogant fools who still think it is the 1970’s. One would think that they would have seen which way the wind was blowing about 10 years ago and gone with the flow instead of trying to maintain their greedy grasp on their “monopoly’. They have treated their customers and “employees” (the artists) terribly and it is no wonder that both are running as fast as they can away from them. They are much like the MSM-they do not realise that they are no longer the “gatekeepers”.

    Another thing I think they made a huge mistake with the artists they pushed over the last 10 years. I am sorry but it was very difficult to find anything outside of gansta rap, boibands and talentless silicone titted bimbos. For years it was all they really promoted and pushed. I am sorry but I would rather sit and listen to jackhammers before listening to that crap. I found most of the music I have liked that was made in the last 10 years not by listening to the radio or hearing it in a store. I found it online or by word of mouth. None of it is on a major label and none of it is by any of the record industry “stars”.

  • David Perry

    With regards to the profitability of recorded music: I think people are underestimating the drastic effect the new technologies will have on both the cost of distributing and recording music. Dark Side of the Moon was mentioned. Well, one probably could already make a passable imitation with the stuff that’s available to people at home for relatively inexpensive prices, and in another five or ten years, you certainly will be. And of course, the distribution costs are pretty much limited to servers, bandwidth, and the staff needed to run the equipment and handle the sales. A band can do that itself at the beginning, and once it gets some money it can hire people to do that for a lot less than it’ll cost them to sign with a label.

    And keep in mind that while the ability to copy illegally is always advancing, so is the ability to provide cooler stuff from the official sources. For instance, a lot of people don’t want to wait until Battlestar is on Bittorrent. They want to see it now. They’re only going to be able to do that at the official site. Similarly, lots of people don’t want to have to wade through the undifferentiated mass of Tom & Jerry cartoons at Bittorrent; they want to get it the boxed set, which allows you to choose episodes, get director’s commentary, see unreleased sketches, etc.

    It may be (although even this I’m not convinced of) that we will see the end of incredibly wealthy rock stars. (This may not be an unmixed curse, given the sad decline of many stars’ careers after they get incredibly wealthy. Hunger–or at least wanting to keep the style to which you’re accustomed–is a great motivator.) But I suspect people will still be able to make a living–even an above-average living–playing music.

    We may also see a mix of models. It may be, as the Economist article talks about, that Top 40 music will go to an advertiser-supported model. However, I suspect the niche markets will be driven by direct sales, since people who are passionate fans will pay to hear their music. These performers, on average, will almost certainly make out better than they do under the current regime.

  • Becky

    Those of you fussing over the copyright issue are really missing the forest through the trees.

    Copyrights are getting in your way of success. It’s not that you shouldn’t be able to copyright music or to enforce your copyrights and I completely agree that those who violate them are stealing. But what the music industry needs to face (and won’t) is that the ability to control profits through copyrights is what is over. Deal with it or die the death of the dinosaurs. That’s not what the profit model is for the future.

    If you were successful in preventing illegal file sharing the only result would be that new artists would create new songs within the new model and those are the artists and works that would be propelled into the ipods and phones of the children of the future. Sure, they will still listen to the old favorites – but enforce your copyrights with fines or jail time and they will eventually dump those sixties songs and go back to uncopyrighted remakes of the hits of the 1600s, 1700’s and 1800s.

    The winners in the future will be the ones who get their music in front of the most number of listeners and make their songs and names known to the greatest number of people. Successfully enforcing your copyrights only inhibits that process.

    Just like the NYT and every other newspaper thought they could put their work behind a firewall and increase profits earned, the trick now is to get as many eyes or ears on your stuff and get a following. There are just too many other people who are willing to produce good quality for less or for even for free. That fact that it sucks for those who currently or could have made big bucks under the old model is absolutely meaningless to the equally talented bloggers and musicians who keep their day job and do it as a labor of love or for less money than they might have made in the good old days – because for them, less money is still more money than they are making now.

    Those who collect followers to their sites, music or news articles or funny videos will be the money makers of the future.

    Yes, there is still money to be made by enforcing copyrights on games because the production of good games requires serious capital and production effort. That is no longer true for really good music or reporting.

    Deal with it or die.

  • David Perry

    With regards to touring: when we all have T1 connections to our homes, and 80′ flat screens on our living room walls, and crystal-clear surround-sound speakers, one will be able to “tour” without leaving the house, and still have plenty of time to play with the kiddies and romance the spouse. Not to mention, since your potential audience is the entire world (or at least the technically advanced parts of it) you can charge a lot less per head, play a lot less “dates” per year, and still come out way ahead.

    Even with actual physical touring, if it becomes too expensive for bands to drag lots of equipment with them, the venues may start providing the equipment themselves. This probably means a smaller cut for the band, but since their costs go down too, it may work out in the end.

  • willem

    A minor point among all the great comments here. The kids left the CDs not because they were CDs, the left the CDs because they had no creedence. Kids buy CDs at local concerts from favorite bands every week, some terribly recorded and produced. And they pay to buy CDs of other bands they’ve never seen but have heard about from people who, in their eyes, have creedence.

    Public Schools and the NEA have done the most to kill the music business as we know it. Thanks to the institutional corporate culture of modern educators, kids today have deep and sophisticated contempt and sweeping distrust for any institutional or corporate attempt to advise, manipulate or dictate their choices in life. If those record execs would have offered to pay those kids to take and listen to those CDs they wanted to give away, most would have turned both the money and the CDs down.

    Musical preference has always involved a degree of political statement and personal identity. What is being revealed is the depth of overall distrust in our children provoked by the laggards who control and populate union dominated public education. They see all institutional and corporate types through the same lens, and it’s quite an ugly picture in their eyes.

    Sure MP3s are more convenient. Sure that’s killing CD sales. But what is drying up most of all? The ability of music biz honchos to predictively identify talent and production which defines the next wave of big sellers.

    They have lost their creedence. It’s not all their fault but they have lost it just the same. They have no comparative advantage when the product form is MP3 available from digital download.

    This is also mirrors what must also soon be faced in our failing K-12 approach to educating our kids.

    It will be interesting to see how this sweeping collapse of creedence impacts other aspects our national life and politics. I think it is a very big deal that is just emerging from under the radar.

    The creedence crisis in the music business is the tip of the cultural iceberg. It going to impact many major institutions and corporate. Many a USS Titanic will be sent to the ocean floor.

  • After the Singularity, our AI overlords will generate ad hoc, novel, personalized music specifically for each of our brains, to keep us docile in a bovine way. Rock on, dude.

  • Jeff

    One solution would be for artists to avoid high-quality recording studios and release their music at low quality bit-rate (sort of like old AM radio). They could then charge very high ticket prices for live performances.

    Concert promoters would thrive, but the legacy recording industry would collapse (which is happening anyway).

  • David Perry

    With regards to intellectual property rights: I have no problem with the concept of copyright per se, and I still it has a useful purpose in providing incentives for people to create. I also have no problem with the idea, in general, of a contract between the seller and the buyer that limits the seller’s reproduction rights, and I don’t think that those should be unilaterally abrogated.

    By the same token, the major media producers have used their influence in government to extend their legal monopolies on ideas for very long periods of time (and in some cases retroactively). One could also consider this unilaterally abrograting or altering a contract, too. It’s particularly infuriating when they then use those monopolies to protect themselves from market forces. While legal download prices have gone down somewhat recently, it still basically costs the same to download a 12-song album as it does to buy the CD–despite the fact that the costs to the seller are far less. We are also beginning to see the regulation or banning of technologies that have plenty of perfectly legitimate uses, just because they can also be used to copy illegally.

    As much as some people do not want to admit it, intellectual property is not the same as physical property. There is no such thing as a totally original idea (at least, not since Cro-Magnon times, anyway.) This is such an old idea, it’s in the Bible, for crying out loud: “There is nothing new under the sun.” Therefore, one cannot assert exclusive rights in intellectual property philosophically in the same way that you can with physical property. We have chosen to import ideas from physical property through legal action, but one should be careful about applying them to ideas in exactly the same way one does to stuff.

    Furthermore, we don’t even treat all intellectual property the same. If the US had granted IBM a 150-year patent on computers in the 1940’s, and they were still using it to force us to buy $3,000 PC’s, people on here would be having a conniption–and rightly so. Why is Bugs Bunny, “Satisfaction”, or Star Wars any different? (Given that most copyright laws specify “life of the author + a bunch of years,” and life is getting longer every year, 150 years is a conservative estimate for how long some modern copyrights are going to run.) The original length of copyright in the US was 28 years; I’ll even round it off to an nice round 30. I think that’s plenty of time to profit off any particular cultural phenomenon.

    Furthermore, as others have pointed out, it’s rather a stupid practice on the part of the producers. Making the product more difficult to use is never a smart strategy, and with the current generation of youth, who aren’t accustomed to having their preferences limited, it definitely isn’t going to fly.

  • Becky

    The next industry to go the way of the music industry will be the publishing industy. It is not going to have the same impact on them because there is much more of a bricks and mortar aspect to publishing – at least until electronic books get better.

    Like music, today anyone can publish their own book and have it printed up tomorrow at amazon for a reasonable fee. Like the music industry, this will produce a wealth of crappy books, but will also increase the number of good ones available.

    Search engines and reviewers whom I can trust to recommend which of the 200,000 books on any particular topic will be the driving forces of profit.

    It will be different than the music industry – but the decline of the status quo is likewise inevitable.

  • Becky

    David Perry, your comments are spot on.

  • It has to be remembered that the recording industry is a fairly recent phenomenon,the vast canon of music was never recorded.The hegemony of the big recording companies is over,and not too soon.Most innovation had been replaced by bean counters who dictated what was commercially viable. Too many artist were dropped from the catalogues much music was left un-released.
    What is essential now, is for all those who have had recording contracts to regain the rights to their music and release it themselves.

  • Midwesterner

    Sunfish,

    They did not really have a very good idea of where the property lines were at all. On a map down at the courthouse was a picture of black lines on white paper showing the shape of the lot and identifying where the boundaries were. But years later, there were still places that I couldn’t guess the property lines to better than ten or fifteen feet. What they did was agree to exchange money for land represented by that description recorded in a courthouse somewhere. Can you imagine it? My dad actually was responsible to know what was recorded at the courthouse and hence, what he was buying.

    I’ll bet if you look on that Los Lobos CD, you will somewhere find a ‘C’ in a circle. © This is the equivalent to a lot number (which says nothing about where the lot lines are) that represents lines recorded on a map in a courthouse somewhere. © has a legal meaning. Remember the old ‘ignorance is no excuse’. Well claiming ignorance of what a copyright is, is like claiming ignorance for what a lot line is only the © is a lot more obvious than most lot lines and you only need to learn it once. The lines are the same for every lot.

    What you are describing when you say a chain of contracts must be presented to maintain a claim is in many ways similar to the abstracts that were used to verify land claims before the modern method became established. I sure as heck don’t want to have to start maintaining chains of provenance on every album I buy. But that is where rejection of copyrights will lead to. Which is going to blast artists financially because the effort scales with the quantity of transactions. And a lot more music than land transactions are made.

    That’s when I pocket my money and tell the salesman that he can roll up the CD and see where it fits.

    Yep. That’s exactly what I mean by letting the market handle it. Of course, all the good musicians that need to put food on the table and aren’t commercially viable to tour will have to do something else for a living once copyright protections are rejected and replaced with individual contracts enforced at the music producers expense.

    I’ll ramble on a bit more. In Wisconsin, where I live, there is specifically no requirement that you post your property. Trespassers are required to confirm that access is permitted before they may take a hike across the field. And there is much property that access is permitted to the public (mostly in exchange for tax exemptions) so it is not a stretch to assume land is public access land. But none the less, you the pedestrian are required to know about how the land is listed down at the courthouse and what its public access status is before you may cross the property.

    Based on the property not being clearly labeled, would you discontinue this practice and allow access to all unposted or inadequately posted property?

  • Table top machine tools will change the nature of physical property as well.

    What happens when you can print your own circuits on a piece of paper?

    We are entering an age of abundance.

  • David Perry

    Where is the good music that is being made?

    I think Music is going the way of painting and other arts that went mostly flat. The end of high speed inventivness and trully new sounds is to be expected. That is normal, our senses are limited and high output human production since the West started to get healthy and could sustain thousand Music artists means that most of it was invented already, or maybe most of what is easy with current knowledge. There is probably a limited number of pratical variations. Like in Olympics records are more dificult to be beaten year after year.

    Actually, I think the real reason a lot of the arts–at least in their “high” forms–went flat in the 20th century was that, in tne mania to try “new” things, people ended up in avenues that were not worth exploring. You know, like splashing buckets of paint on a canvas, and calling it a “painting,” or putting together a bunch of random, dissonant notes and calling it a “symphony.” (I’m being polite in assigning motivation, by the way; I usually give a lot worse reasons for the course the arts have taken over the past hundred years or so.) There was plenty of timeless music produced in the 20th century; it’s just that most of it came from what we think of as “popular music” (jazz and big band from 1920 to 1955, rock, pop and country since then.) In 300 years, I guarantee Lennon & McCartney and Ellington will be in the pantheon with Bach, Beethoven, and Verdi; I can’t say the same for any recent “classical” composers. If you think of it, recent popular music is in many ways conservatively based; it takes its rhythms and singing patterns from African tribal music, its melodic structure from Baroque counterpoint, and its lyrical style from medieval English folk tunes. Yet a lot of new creativity has emerged from that mix. I’d say there’s quite a lot of life left in the old ways yet.

  • Midwesterner

    Wow. I go away for awhile and come back to find a maelstrom. I’m not going to bother addressing all the people who blame the rampant theft on the music producers. I hear enough of that kind of shit from left wing socialists blaming everything on the rich to ever think of giving it serious discussion here. Apparently the haves (as in have music to sell) are not sharing fairly with the poor have nots (people who want to have music) and therefore the (musically) rich people’s greed is what is causing all of this theft.

    redherky,

    I would like to hear more about that business model. Can you give any more detail. Does it force all artists to give up IP protection or does it allow artists by choice to give up protection where it suits their personal purposes.

    mCrane,

    I like that business model and it is probably one I would adopt if I were an artist. A simple thing like removing certain registers would also allow the music to get out for free but still leave a salable product. But it still requires IP protection.

    Hucbald,

    Can I have a link to your free music? I don’t really want to pay to see a live performance. And besides, if I can get your music free, why bother going to a performance?

    David Perry,

    So you ‘tour’ digitally. Why should I pay so see your ‘tour’ performance if I can get a free bootleg of your concert last week.

    David Govett,

    LOL.

    David Perry,

    intellectual property is not the same as physical property. There is no such thing as a totally original idea (at least, not since Cro-Magnon times, anyway.)

    And there is no such thing as a totally clear claim to physical property (at least, not since Cro-Magnon times, anyway.) Unless you want to start judging the moral grounds of all the wars throughout history.

    David Perry,

    The reason that ‘art’ is a lot longer than ‘invention’ is because dozens if not tens of thousands of inventors would have come up with the transistor by now. How many people would have duplicated ‘King Lear’ by now? The difference in length is intended to reflect the reality of how fast another person would have created that particular IP.

    Becky,

    I am enjoying a very good Tony Hillerman novel, Skeleton Man. I hope nobody starts giving his books away for free. I kind hope he keeps writing them.

  • David Perry

    Think it’s more likely we’ll see more and more one-hit wonders and flashes in the pan, as internet fans are probably more fickle. Look at the arctic monkeys – an absoluteley massive album based on internet buzz, hugely famous for a while, already started to fade away with the second album.

    Well, this has always been the case. Analyze the Billboard Top 40 over time, and I guarantee you’ll find the “80-20″ rule applys there as much as anywhere.

    I suspect that you’re right that there will be more really huge one-hit, or one-album wonders–but I also bet that a lot of those bands will be able to develop enough of a following and make enough money that they’ll be able to stay together, whereas now, once the popularity of the one hit fades and the money dries up, they have to quit and get day jobs.

    One other good change that I think the new model will bring about is it will shift the balance back to quantity somewhat. Remember the good old days, when even major bands did at least one album a year, and often did two? Nowadays, even new bands take a couple of years between their first and second albums. I suspect this has to do with the fact that the more money that the media machine can squeeze out of the same album, the more you can amortize your costs. I believe this kind of thinking has negative effects on quality as well. Besides the fact that taking a long time to make albums encourages pretension (Boston, I’m looking at you!), it also means that you just get less music from good bands in their primes. The Beatles’s recording career was basically eight years. If they’d done one album every two years, we’d only have four albums from them, as opposed to the 12 (British versions) we actually have (plus three more CD’s of singles and EP’s) I suggest the net effect on our musical heritage would have been severely negative.

  • Becky

    Yeah, I hope so too. And if he’s as good as you say, I’m sure he’ll keep writing and you and all of his other fans will keep buying.

    But you can hope all you want to and it won’t change the fact that the old model is dead. While it may suck for some, it will be good for others. Life goes on. You can get with the new or die with the old.

  • ben

    I don’t think the insults directed at me for being a lawyer are appropriate. I’m proud to be a lawyer. People tend to conflate lawyers with the clients they represent; if you don’t like the way the law has evolved, blame the individuals and institutions who made it so by directing their lawyers to take whatever particular action concerns you. Lawyers en masse aren’t responsible for the morass of todays contract and copyright law, that blame lies squarely at the feet of media companies (and others).

    I’m not going to teach an entire class on contract law here, but as for Midwesterner’s assertion that his uncle bought a farm with a handshake, perhaps he did. But that is a vastly different situation. In a simple sales contract, even an oral one, both parties will be aware of what they are buying/selling, the terms of the contract, and the price. At that point they can assent to the agreement, and when one person tenders the money and the other tenders the deed, they have executed the contract.

    (It’s worth noting that such a contract would be unenforceable because it isn’t in writing, and you can’t blame me for that. Blame the drafters of the Statute of Frauds in 1677.)

    As for the taking-gas-without-paying-for-it scenario, that isn’t breach of contract, it is theft. If the gas station rips you off, it is breach of contract.

    It isn’t a particularly germane example, because the issue being discussed here is whether content producers can impose additional contract terms on you after there has been a bargained for exchange. Oral contracts and implied contracts can arise in limited circumstances, but there still has to be a meeting of the minds, assenting to agreed upon terms. You can’t force an implied contract down someone’s throat just because you want to. That’s what it seems many people in this thread would like to do: “You bought my copyrighted product; now that I have my money, I can impose whatever additional terms I want and you are contractually obligated.”

    That is pretty scary if you ask me. I doubt many readers of this blog would abide that sort of behavior from their government. Why tolerate such legally dubious behavior from individuals?

    (Of course, both governments and individuals impose some of this through legislation, but that is an entirely different discussion.)

    I also want to add that I agree with the person who said Metropolis Records is doing things right. They are a niche market, who understand where they fit into the larger industry. They also understand how their consumers, who are largely younger, computer-savvy individuals access content. They aren’t going to make millions of dollars selling industrial/electronic music, but if the ‘long-tail’ hype is to be believed, pretty much everything is a niche market these days.

    Perhaps that is why media companies are suffering? Because they can’t rely on mass marketing to sell crap to people anymore. People don’t value all music less, they just value crappy music less. They can easily access whatever niche music they like, and they don’t have to rely on the limited selection of their local record store.

  • RAB

    Thanks Ian B. You sure can draw!
    No Hobbits? Where is that bird with the green hair and the pointy ears from then!
    Oh the Trekkie thing I expect.
    Vulcan, not the Shire Sproggers branch.
    Ah keep it up, as it were! ;-)
    I was just about to post when another thought occured to me.
    Who would want to shag a Vulcan?
    Zero emotions. Merely a matter of orifices Captain!

  • Midwesterner

    Well obviously, whatever rights were defined by copyright law at the time the transaction occurred should apply. Ex post facto doesn’t cut it in anybody’s book and using that conduct by some to reject the concept of copyrights as a whole (if that is what you are doing) is a strawman.

    And no, Ben. Around here we are far more likely to conflate lawyers with politicians and lobbyests. The professional law explainers have gained control of the machinery that makes professional law explainers necessary. Job security. And the problem in our various laws does not lie at the foot of any particular companies or individuals. It lies in democracy. I don’t believe unrestrained democracy is a moral good.

    I view a constitution as a contract between a group of people. The government is a result of that contract, but not its purpose. That line of thought is OT so I’ll stop it there.

  • Richard Thomas

    Rihrd,

    Pick up your crayons and go to bed. You shouldn’t be playing with the computer.

    Congrats midwesterner, your insightful analysis and argument are irrefutable. You surely win.

    Now quit pouting and pick up those blocks you’ve kicked over, it’s passed your bedtime.

    What I seem to be seeing here from some people amounts to “but… but… it’s my revenue stream” and then rationalizing why the status quo should remain. To me, part of being a Libertarian or an individualist or whatever it is this week is being intellectually honest and realising that not every principle I stand for is going to be to my advantage (and therefore vice versa). That’s part of the point of having principles.

    Copyright as it stands is complicated. Usually, when something is complicated, to me that usually indicates there’s some woolly thinking going on. Take things back to first principles and things start to look clearer.

    I don’t think I’m going to convince anyone with a long drawn-out discussion of the points, there’s several issues at stake and the defenders of the status quo will tend to dance between them to obsfucate matters. But here’s a list of a few things to consider:

    o Copyright is not a right. It is a protection granted to producers of information with the intent to encourage them to produce more information. It is not intended for the benefit of the information producer.

    o Copying and distributing something is not theft, it is copyright infringement.

    o Intellectual property is not the same as private property. In my book it isn’t even really property. Trying to treat it as if it is leads to problems.

    o “Implied Contract”? Do me a favor. And what happens when my brother buys a CD and gives it to me? Who is obligated by any “implied contract” then? Did my brother break the law by giving me the CD (and which?)

    Copyright law as it stands is a bit fuzzy at the edges. Big “IP” industry likes it that way because it allows them to perpetrate the fiction of having it both ways (that they license you the content but that you have bought a physical object and the two are tied together).

    Before it was easy, you bought the CD/tape/LP, you played the CD/tape/LP and maybe you copied and shared a copy with a friend or two, the record execs snorted a few more lines of coke off a hookers arse and everyone was happy (except the 99% of artists who were shafted by the record companies). Copyright law itself wasn’t challenged in any particular way. Now, technology has changed, copyright law is now under a microscope both because the way it interracts with the world has been fundamentally changed but also because now thousands upon thousands of people are able to discuss and dissect it in minute detail and it’s turning out to be on shaky ground.

    Of course, feel free to cover your eyes, pretend it isn’t happening and make quips about crayons but the world is moving on.

    Rich

  • Since there’s been a couple of requests my main (pay) site is Not Safe For Work and is here. It contains no hobbits.

    Wot??? No hobbits? Is this racism I detect?

  • Good music will still be made, because boys/young men will always find that displays of (musical) prowess will make it far easier for them to get laid.

  • David Perry

    Hi, Midwesterner,

    So you ‘tour’ digitally. Why should I pay so see your ‘tour’ performance if I can get a free bootleg of your concert last week.

    For the same reasons you paid to see more than one of my live shows in the old days:

    1.) I’ve written new songs since last week, and you want to hear them.
    2.) I’m going to perform my old songs differently than I did last week, and you want to hear what that will be like.
    3.) You just really, really like me, and you want to support my production of great music. :-)

    I’m sure your riposte will be, “So why can’t I just wait a week and get the free bootleg?” To which my answers are a.) You love me so much you can’t wait that long. b.) My broadcast will be much higher quality than the bootleg will be. c.) I’m going to price my broadcast reasonably enough that it won’t be worth your while to hunt around for a bootleg. (And before you get cynical about that last point, keep in mind that our standards of “reasonable” change over time. In the ’50’s, searching rare record stores and catalogs for months was acceptable for something you really wanted to hear. Nowadays, if we can’t download it in a crystal-clear format in 10 minutes, forget it.)

    Put differently, if all of your doom-and-gloom about the moral level of the average downloader is true, then the only way we’re going to be able to “enforce contracts” in this area is to have a police state. Anything else, and there won’t be enough lawyers, RIAA enforcers, etc. to save the for-profit entertainment industry as we know it. This wouldn’t mean that the arts would completely disappear; people would still create for the sheer joy of it, just as Alex Rodriguez would still love to play baseball even if he wasn’t getting paid zillions of dollars to do so. But given your assumption, those are the only two reasonable alternatives. The first is obviously unacceptable, and as for the second–well, I have more faith in the average person than you do, I guess.

    And there is no such thing as a totally clear claim to physical property (at least, not since Cro-Magnon times, anyway.)

    This is really only fully applicable to land–and in fairness, Henry George has some interesting things to say about that, and you won’t find too many people as capitalistic as he is. Be that as it may, at least an item of physical property can be separated and identified as belonging to a particular person. How, exactly, do you determine how much of an idea is yours, and how much of it came from someone else?

    Again, I don’t have a problem in general with the idea of having property rights in ideas, like you have them in physical stuff. But to say that they are exactly the same is simply not realistic.

    The reason that ‘art’ is a lot longer than ‘invention’ is because dozens if not tens of thousands of inventors would have come up with the transistor by now. How many people would have duplicated ‘King Lear’ by now? The difference in length is intended to reflect the reality of how fast another person would have created that particular IP.

    To begin with, be not too sure that great inventions don’t require as much creativity, hard work, etc. as great art does. There are plenty of stories of people who saw the potential in some new material or process when no one else did. Yes, we would probably have some device that served the purpose of a transistor–but it might not be as good, or as cheap, or as small, or whatever.

    Second, be also not too sure that someone wouldn’t have come up with King Lear eventually. Again, it might not have been as good, or as moving, or as effective on stage–but I bet someone would eventually have come up with the idea of a tragic king and his squabbling daughters. In fact, I guarantee someone would have, since the play is based on an old British legend–which kind of makes my point about the lack of truly original ideas.

    Furthermore, all of this is basically irrelevant, since the chain of development in both examples works much the same way (one can argue that in a way, all property is “intellectual” property, since all stuff just sits there until someone applies his brain and figures out a way to turn it to a useful purpose. Again, land is an arguable exception, but even that doesn’t do much unless someone does something with it.) With the transistor, first someone had to harness electricity, then someone had to figure out devices, like radios, to use it with, then someone had to discover the physics that make transistors work, then someone had to figure out how to assemble minaturized components, and finally someone put it all together and made the transistor. Similarly, first someone had to come up with the idea of a play, then the idea of a tragedy, then the historical tragedy, then the Elizabethan style of presenting a historical tragedy, and then finally Shakespeare applied it to this particular story from British mythology. (Of course, I’m skipping a lot of steps; I could go back to the invention of fire and communication, but you get the point.) The process is the same; only the details are different.

    Also, please don’t tell me that you believe in the labor theory of value. I may spend 30 years of painstaking research, drafting and re-drafting, to create a finely detailed fictional universe–but if I’m the only one interested in it, its value in the market is diddly/squat. On the other hand, I may scribble the design for the perfect mousetrap on the back of a napkin in five minutes–but if it can be translated into reality, and it gets rid of the rodents every time, I will be a very wealthy man. Even if art really did require more creativity or work than invention, that would still be irrevelant to the question.

    Finally, the entire idea that art deserves more protection than invention is, as I pointed out earlier, a pretty recent one, at least here in the US. Again, the original maximum term of copyright here in the US was 28 years–the same as what patents were, and still are. It was only in the 20th century that copyright terms were significantly extended, which was the same time that–surprise, surprise!!–major corporations began to dominate the entertainment business. Given the horror stories we’ve all heard about the way creators are often treated by these companies, it’s difficult to believe that the extensions were motivated by concern for the artist.

    Again, I don’t have any problems with corporations per se, and I think that the idea of copyright in general is useful, and certainly corporations should be allowed to hold them just like anyone else can. However, you were the one who was complaining about how people wanted to use lawyers and socialism to get their way on this issue. My point is, it was the big media companies that started it. I was perfectly happy to let them have exclusive rights to songs and books and movies as long as a.) they didn’t mind if I occasionally shifted something to another format, or made a copy for a good friend so I could share good stuff with them, and b.) as long as there was a reasonable chance that their rights would expire in my lifetime, and then I could apply my creativity to their ideas. Since, however, neither of these is the case today, you’re going to have to forgive me if I don’t look upon illegal downloading with quite the same moral outrage as, say, breaking into a old lady’s home and stealing her life savings. I don’t like socialism any more than you do, but I don’t see why the big companies should be able to use it any more than you or I can.

  • Midwesterner

    Richard Thomas,

    It is a protection granted to producers of information with the intent to encourage them to produce more information. It is not intended for the benefit of the information producer.

    Huh? “Encourage” without a “benefit”. Distinction without a difference.

    o Copying and distributing something is not theft, it is copyright infringement.

    “not theft”. So the owner of the copyright is not actually losing anything? Or is this your sleight of hand way to say ‘because copyright is evil, copying and distributing is not theft only copyright infringement’?

    o Intellectual property is not the same as private property. In my book it isn’t even really property. Trying to treat it as if it is leads to problems.

    Well now, “not the same as” and “isn’t even really” and “Trying to treat it as if it is leads to problems” is a chain of ‘reasoning’ that has rationalized everything from slavery to banning religions.

    And what happens when my brother buys a CD and gives it to me?

    Did he make a copy so that he could retain the benefits of the CD he gave you? If he did, he was bootlegging. If he didn’t, it is the intellectual equivalent of a quit claim transfer. That is allowed under copyright as I understand it.

    As for your reaction to my “crayons” remark. I have a long way to go to match “the record execs snorted a few more lines of coke off a hookers arse”.

  • Tom Perkins

    David Perry wrote:

    Put differently, if all of your doom-and-gloom about the moral level of the average downloader is true, then the only way we’re going to be able to “enforce contracts” in this area is to have a police state.

    From what I can hear from Big Media, they’re OK with that…

    …I’d like to see them run into a brick wall for their efforts.

    Oh wait, they did.

  • Becky

    Midwesterner, you provide a good example of why copyright law and the music industry are failing. It is like you are busy pulling out weeds in a big cornfield. You don’t seem to realize that the money is in making the corn grow, not in making the weeds go away.

  • Midwesterner

    David Perry,

    For the same reasons you paid to see more than one of my live shows in the old days:

    I didn’t (and don’t) go to shows. I buy albums.

    “So why can’t I just wait a week and get the free bootleg?”

    a.) You love me so much you can’t wait that long.

    I don’t know you, and even if I did, I (and most of your market) are perfectly happy to wait a week to get out of paying for it.

    b.) My broadcast will be much higher quality than the bootleg will be.

    Not in this digital age.

    c.) I’m going to price my broadcast reasonably enough that it won’t be worth your while to hunt around for a bootleg.

    Good answer.

    I’ve tried to avoid offering a ‘solution’ because I think it is absolutely none of government’s business to tailor laws to achieve goals. I think it is government’s one and only job to protect life liberty and property. But I understand a lot of people think government should try to solve problems. To answer those people, here is how I think the market will solve the ‘problem’. I think it will be the answer to ‘c’ of your points. Some web site will make it so easy and cheap to find what I want and download it for cheap that it is easier than theft. But I reject the plan of encouraging what can only be called ‘theft’ in order to achieve this goal. I really do think (plug your ears) the market will solve it. (Okay, you can unstop you ears now.)

    To begin with, be not too sure that great inventions don’t require as much creativity, hard work, etc. as great art does.

    Oh I absolutely agree. In fact, looking at art and having many friends in research, I think research is a lot more difficult and creative. But the purpose of IP lengths is not to reward effort. It is to estimate how far in advance of others they accomplished something and to reward them with a head start on using it. And in fields where a lot of people are aiming for approximately the same goals, intervals are comparatively short.

    Second, be also not too sure that someone wouldn’t have come up with King Lear eventually.

    Copyrights don’t run forever. Just a long time. I’m not sure what I think of renewability. I’m not vested in it and I think a fixed interval might be better.

    Furthermore, all of this is basically irrelevant, since the chain of development in both examples works much the same way (one can argue that in a way, all property is “intellectual” property, since all stuff just sits there until someone applies his brain and figures out a way to turn it to a useful purpose.

    Yup. Without humans, property rights are the sound of one hand clapping. And when humans agree to rules regarding assignment of property rights, they do it on logical grounds. At least they should, but obviously their is a lot of emotion from at least some quarters. My passion is for life, liberty and property. Since what we are talking about with IP is something that clearly is the creation of an individual, I believe it to qualify as property.

    My chain of provenance is a simple one. I imagine something and keep it secret. Nobody here at least contests that I am entitled to that secret. You want to know my secret. I make you promise not to tell anyone. (Still no argument I assume.) But now, if you make you promise not to digitally ‘tell’ someone, a lot of people suddenly think that is all wrong and your promise doesn’t really count.

    I accept the idea that the system is seriously abused, but the concept of IP is sound and a fundamental component of human liberty.

  • Some of the people on this thread are having a legal discussion, some are having a moral discussion and some are having a practical discussion. I think it is useful to distinguish between them so it does not become a total muddle. Here is a practical point: Whether or not one believes it is right to fileshare, one can still state that the record companies will lose unless they wake up and get with the program. Saying that the companies have screwed themselves does not mean that one is excusing or supporting filesharing/downloads (I for one do not download or fileshare – though my own stuff is available for free – cause I just like to get my songs out there). It is simply saying that the record companies need to find a new model or they will be sunk. As for the artists getting screwed by the downloaders, that may be true from a moral perspective, but from a practical perspective, the artists are no longer at the mercy of one creation/distribution model. Again – a practical rather than moral or legal point. Anyway, fascinating thread.

  • Forgot to hit the ‘include URL’ button – I’m such a Luddite…(Link)

  • Midwesterner

    I think it is useful to distinguish between them so it does not become a total muddle.

    True. And alas, I think I am one of the worst offenders for muddling things.

  • Richard Thomas

    Huh? “Encourage” without a “benefit”. Distinction without a difference.

    Not at all. the benefit is a means, not an end. Unfortunately, people have started to buy into the lie that the benefit is the end and that starts leading us down a very dubious path.

    “not theft”. So the owner of the copyright is not actually losing anything?

    Absolutely. To not gain is not the same as to lose. I’m not saying that copyright infringement and theft might not be considered the same morally but it is a very important difference. If I have only 5 pounds and my friend has only 5 pounds and we each buy an album and give each other a copy, how has the creator of the album been deprived of anything if we would not have been able to purchase the extra copies legitimately? You can still say it is wrong to do so, I may not disagree but it is still a very different thing.

    Theft is a very emotionally loaded term and therefore the use of the word in connection to other activities can be seen as an attempt to pre-load those activities with those emotional biases rather than look at the facts of the matter directly.

    Or is this your sleight of hand way to say ‘because copyright is evil, copying and distributing is not theft only copyright infringement’?

    No, it is my very direct way of saying that copying and distributing is not theft only copyright infringement. A simple statement of fact.

    Well now, “not the same as” and “isn’t even really” and “Trying to treat it as if it is leads to problems” is a chain of ‘reasoning’ that has rationalized everything from slavery to banning religions.

    Uh, ok…. (what?)

    It’s also a chain of reasoning that has led to, for example, not asking for two pounds of apples and ending up with oranges and pears.

    They say that when all you have is a hammer, everything looks like nails. Let’s not start out by defining everything as nails so that we only have to buy one tool. Physical property is indivisible and scarcity comes from that nature, information is infinitely divisible with no loss and scarcity only comes artificially.

    Note that I am not saying “Intellectual property is different from Physical property therefore let’s throw out copyrights, patents and trademarks”, what I am saying is not to apply concepts of physical property to “intellectual property” merely because they both use the same eight letter word.

    Did he make a copy so that he could retain the benefits of the CD he gave you? If he did, he was bootlegging. If he didn’t, it is the intellectual equivalent of a quit claim transfer. That is allowed under copyright as I understand it.

    I don’t know why you brought bootlegging into it but let’s say no, he didn’t make a copy. So are you saying that I am entering into a contract with the record company by the act of accepting a gift from my brother?

    As for your reaction to my “crayons” remark. I have a long way to go to match “the record execs snorted a few more lines of coke off a hookers arse”.

    Don’t worry, you’ll get better with practice :)

    Rich

  • Tom Perkins

    Midwesterner wrote:

    “But now, if you “I”?make you promise not to digitally ‘tell’ someone, a lot of people suddenly think that is all wrong and your promise doesn’t really count.”

    But practically that is not what copyrights are today, in Big Media’s eyes, they are not such a promise.

    A copyright today is a “promise” that a 3rd party–government–will will fine/jail, and ultimately–kill–someone who violates what one party to the agreement, Big Media, says the agreement means. And they buy the legislators to make it say that.

    If they only meant what you seem to say they mean, I’d have no problems with them.

  • This is a pretty typical conversation: You buy it, you own it and massive redistribution (e.g. uploading to the public) is wrong but minor redistribution (e.g. putting it on your friends iPod) is OK. Big problem: The law doesn’t support this intuitive idea.

    The only interesting bit I noticed was this:
    I’m quite a fan of Battlestar Galactica. I got the whole lot off torrent, I get the new episodes off torrent, they haven’t made a red cent off me in either advertising or direct sales.

    So, Ian, you are saying that it’s wrong for people to steal your stuff, but you can steal other peoples?!?

    I write software for a living. I have no stolen software. That’s not to say I pay for everything. For example, I use Gimp instead of Photoshop.

    I also have no problem buying music or movies. I (probably, I’m honestly not sure, which is the “implied contract” issue, above) break the law regularly with NetFlixx: I rip a movie when I get it and send it back. I watch it at my leisure – and usually delete it when I’m done (I have limited hard-drive space and most things are not worth re-watching). I don’t open that drive up to Torrent. I’ve paid for my single viewing and I’m just time-shifting it.

    People like me – ethical but not willing to be ripped off and not too concerned about the legal details – will support the music (and movie) industry.

    People who steal, will not. However, the odds are that they wouldn’t pay for it in the first place (Battlestar Glactica is available on DVD – buy it, or just rent it, even if you don’t watch it again; consider it reverse time-shifting) so no revenue is lost.

  • Plamus

    Physical property is indivisible and scarcity comes from that nature, information is infinitely divisible with no loss and scarcity only comes artificially.

    Touché!

    Midwesterner, among the defining characteristics of property right over an asset are the right to transfer or sell it, and the right to exclude others from it. The prior precludes the latter. Selling an asset terminates the right to exclude others. Leasing property involves the lessee’s use of property without the right to transfer/sell it, and the lessor’s temporary (or in rare cases, indefinite) forfeiting of the right to exclude the lessee.
    Music companies are trying hard to achieve the best of both worlds – “selling” you something, and then limiting your control and use of it. If they want to have any claim over what you do with what you pay for, they ought to lease it to you, and not sell it to you. It’s rather telling that they choose for the most part not to do so – leasing mostly (some exceptions, of course, commercial aircraft comes to mind) tends to generate less revenue, and involves residual obligations on the lessee of care of the property. Of course, they also have tax considerations, but market distortions from taxes are a separate, and rather large topic.
    Bottom line: you (Midwesterner) may feel you are defending private property rights by standing up for music companies, but I think you are assaulting them. If you want to claim that the time has come to regard lease, and not sell as the default assumption when I hand over money, and receive something in return, that is legitimate – good luck changing people’s distaste for that. Communism would also work if we could just magically change human nature.

  • Becky

    Saying that the companies have screwed themselves does not mean that one is excusing or supporting filesharing/downloads (I for one do not download or fileshare … It is simply saying that the record companies need to find a new model or they will be sunk.

    Very well said, Miriam. The bottom line is that the model for profit has changed. As for the copyright and issues regarding the old model, they are interesting, but for the most part irrelevant to the future of the music industry. Even if they succeed in enforcing them through punishinment or by appealing to morality, it will make little difference. The ability to produce and distribute music radically changed. Copyrights will still play a role, but it will not be to prevent file-sharing, it will be to prevent someone from changing your work, plagerising it or pretending to be you. The goal in the future will be get as many eyes and ears on as possible and copyrights will only hinder the artists ability to do that.

  • Tom Perkins

    Bottom line: you (Midwesterner) may feel you are defending private property rights by standing up for music companies, but I think you are assaulting them…Communism would also work if we could just magically change human nature.

    Plamus wins.

  • RAB

    When I bought my first 12″ album it cost
    37 shillings and sixpence.
    When I saw Hendrix, along with the Pink Floyd, The Amen Corner (Andy Fairweather Low), the Nice (later Emerson lake and Palmer) and a couple of others that didn’t make it to public conciousness…
    I was in the second row, I could smell the petrol before he set light to his guitar…
    Remember the whoosh and the ping of the breaking strings…. And the feedback!
    That, aged 15, cost me 15 shillings.
    Now how does this go again Eamon?
    And yes I love yoy too!!

  • Midwesterner

    Richard Thomas,

    … Nevermind.

    Tom Perkins,

    Arguments that because big media is/was abusing copyright/patent laws, IP is a flawed concept and there should be no intellectual property at all are of the same merit as arguments that because corporations are abusing real estate property law (with things like getting government to use eminent domain to take what isn’t theirs), private real estate is a flawed concept and nobody should have it.

    Based on your last sentence, I think you might agree with me on that, but I am not sure.

    mrsizer,

    I think we agree on what the ideal would be. As I’ve thought more of the principles underlying individualism I’ve become a little more attentive to the principles of things.

    Plamus

    Utter nonsense. Information is not divisible at all. It is copyable. Sheesh.

    Further more, I am not only not standing up for music companies. I hope all of them set up on the present model tank. It would serve them right. But for you to extend that hope into using the power of government as cover for stealing the work product from the artists just about the time those artists are getting out of servitude to the big media companies is to my mind, contemptible.

    I don’t understand your last statement “… that is legitimate – good luck changing people’s distaste for that. Communism would also work if we could just magically change human nature.” It sounds like you are saying people don’t want to actual be bound by the terms to which they agree and “good luck”. Well certainly a lot of people will steal if they can get away with it. You’re saying this is excusable?

    Becky,

    As I understand your comment, you believe artists own artistic, etc control over their property but as a pragmatic matter, they will be unable to exercise it when it comes to file sharing. It may well be a very difficult right to protect, but as a matter of principle, I reject the abandonment of any rights because people who would abrogate them outnumber the people who respect them.

    If it is strictly on a pragmatic level you advocate that business model, I agree something like that is probably one of the models the will succeed. Remember, many models can survive in a free market where all rights of all people are protected. But the idea so many here are defending, namely that since wolves outnumber sheep they will never agree to stop feeding on them so we should accept this and make it law, is preposterous or evil or both. I hope that is not what you are advocating.

    Tom Perkins

    Very nice. That was such a thoughtful contribution.

  • Becky

    Tom, I agree it was a thoughtful contribution. Rereading my previous post, it seems rude to me, though it was not my intention. I got interrupted and did a hasty post that quickly summed up my point in what now seems very rude. My apologies.

    You have summed up my thoughts accurately and I agree with your point. To clarify, I don’t think that the music industry will be gone tomorrow anymore than I think newspapers will suddenly disappear. However, it will be, IMHO a dying industry due to the fact that I believe that in the future what artists will want is not the kind of copyright protection that protects file sharing, but rather they will attempt to have their music circulated as widely as possible to get recognition and the almighty hits. This will create an unhealthy tension between the recording industry and the artists. The artists will want circulation and the recording industry will want to restrict circulation without payment. Think of the failed NYT Premium Select (or whatever it was called). They wanted to put their best writers behind the firewall to make people pay to read. The writers hated it because they lost readers who went off and discovered free blogs that they liked as much or more than than their own work.

    As an example, one technique that will be a effective will be viral marketing. Ideas that makes people want to send your work to their friends. The goal will be to get yours out there in front of everyone and copyrights, as discussed, will inhibit that.

    There is a joke, “we are losing money on every sale – how do you do it? Volume!” (or something like that). But as I’ve talked about in previous posts, way up high – I think advertising dollars and sponsorship are the way it is going to go.

    But you are right. There will be room for many models and the trick, IMHO is to make sure whatever one you choose makes you money.

  • Midwesterner

    Couple of comments, Becky. Are you sure that it is an “unhealthy” tension? After finding out how easy it is to set up home recording (good quality, too), and the ease of internet distribution with the right software or file server service, I kind of think the old model music industry is dead men crawling. But I think it is going to die like Peter Sellers did at the beginning of The Party.

    and copyrights, as discussed, will inhibit that.

    People using their copyrights in stupid ways will certainly inhibit them. But saying that the institution of copyright itself would do that seems along the lines of blaming guns for murders. I defend the right of people to be idiots at their own expense. And if people who own copyrights do like the NYT and to some extent the WSJ (unless they finally went open content, I haven’t kept track) then as I’ve said elsewhere, the market will let them know they are making a mistake. For example, I for one refuse to read any news source or other site that requires registration.

    BTW, I couldn’t find anything rude in any of your comments anywhere. I went back and reread them all. They are thoughtful and thought provoking. We play hard ball and macerate strawmen here, but your comments were all serious and reasoned contributions. I hope you hang around and comment when you want to. We don’t discuss IP all that often although we discuss property rights in various different forms quite often.

  • Richard Thomas

    Well certainly a lot of people will steal if they can get away with it.

    Actually quite wrong. Society would fall apart if that were actually the case.

    Your failure to address anything I said and simply dismissing it is quite telling on your mode of thought by the way. The copyright issue is more complicated than “It’s stealin’ innit?” and terms and definitions absolutely must be defined and agreed before any sendible discussion can take place. The IP industry has muddied the waters and without clarification, there’s no solid ground to build a decent model for copyright upon.

    It’s a complex issue that’s coasted on a lack of critical examination so far. Now, hard questions are being asked and simply saying “It’s all the same as before” simply isn’t going to cut it.

    Rich

  • Plamus

    Midwesterner:

    Point taken, copyable it is, and not divisible – albeit that does not take away from the remaining argument.

    You insist on calling “theft” something that does not meet the definition thereof. It’s your right. However, I find the emotional appeal to not steal from artists oddly similar to one I have heard too many times – about the exploited proletariat and the rapacious capitalists. Current property rights can handle the issue fine, but the outcome seems unintuitive to you. Could it be that we have too much music, art, etc. (thinking pickled cows and the like)? High supply + floor on prices = low volume…. basic economics. What follows is known in economics as substitution effect – when the price of a good rises or is kept artificially high, people use less of it, and more of substitute goods. “Illegal” is a pretty good substitute for “legal”. Your solution is to raise the cost of “illegal” too – by using the government. I say – look at the other side…

    My last statement had to do with a trait deeply ingrained in human beings – the preference for receiving something lasting for their money, as opposed to receiving the right to use something in a limited fashion and/of for a limited time. It explains, for example, why so many people choose to own homes, even when renting makes much more economic sense. Studies have shown (wish I had the links, will look for them) that people will pay way more for something they are “buying” than for something they are “renting”, even if the renting period is much longer than the expected useful life of the acquisition. Those same pesky preferences that throw a monkey wrench in all theories of general equilibrium, as assumptions about rational economic agents turn out to be garbage.

  • Midwesterner

    Richard Thomas,

    We here have this thing called meta-context. It is much discussed around here and is in fact, the point of Samidata’s existence. It is all of the underlying assumptions that a person holds so dearly and deeply that they don’t even know they have made them. Your meta-context is so far from mine that discussion is pointless. I’ll start with the very first one and stop there. You said –

    Copyright is not a right. It is a protection granted to producers of information with the intent to encourage them to produce more information. It is not intended for the benefit of the information producer.

    I said –

    Huh? “Encourage” without a “benefit”. Distinction without a difference.

    You said –

    Not at all. the benefit is a means, not an end. Unfortunately, people have started to buy into the lie that the benefit is the end and that starts leading us down a very dubious path.

    Leaving aside your belief that copyright is not a right, and the apparent point of your statements that you do not believe somebody is even initially entitled to something they have created, you say that it is possible to “encourage” somebody without providing them with any “benefit”. The more I think about that statement, the more it says really bad things about how you “encourage” people to make things you like or presumably do other things you want them to. There is no point in me having any discussion with your meta-context. The assumptions you insist on are too far from anything I accept.

    Just in case you are not following this, which seems likely, I will lay it out simply. “Encourage” means the intended result is a voluntary one. To “encourage” a voluntary act requires a perceived “benefit” to the person being “encouraged”. To carry out an act to influence somebody while intending it to not be a “benefit” to them requires that it have a negative effect on them. An act carried out to avoid negative consequences is by definition, done under duress and is not a voluntary act.

    Virtually every other statement or claim you have made is equally epistemologically flawed but I will not be bothered to go through all of them.

  • Midwesterner

    Plamus,

    It is not an “emotional” appeal. It is a logical conclusion based on the belief that things people create belong to them. Characterizing it as “emotional” means you are not either following or accepting that belief. To put this simply, I believe that what somebody creates is their personal (not society’s collective) property. The rest of my reasoning is based on that foundation and is arrived at through a chain of rational conclusions.

    I have no idea what you are on about with the “pickled cows” and economics. I have said clearly in this thread that I do not accept the idea of using governments laws to achieve goals. This is not about economics. It is about owning what we create. The question I am addressing is one of the principle of private property and contract, not how to ‘fix’ the music industry or make other economic manipulations.

    My last statement had to do with a trait deeply ingrained in human beings – the preference for receiving something lasting for their money, as opposed to receiving the right to use something in a limited fashion and/of for a limited time.

    Ah yes. Nobody will every pay to see a movie or a concert. Huh? And I’m the one who doesn’t understand? Besides being wrong, your statement is based on the premise that it is the government’s job to influence how people interact and to seek economic goals. I do not accept that this is justly within the purview of the government. It is however in the legal scope of the present government but it is not my intent to support that use of government power.

    Those same pesky preferences that throw a monkey wrench in all theories of general equilibrium, as assumptions about rational economic agents turn out to be garbage.

    I have no theories of how government should achieve economic equilibrium or in any other way attempt to influence “economic agents” by which I assume you mean those individuals under its protection.

    I am talking about the principles of life, liberty and property. I have rational reasons for believing the products of our minds are our personal property until we sell or give them away. If you want to discuss that process, I am interested. But I have zero interest in manipulating people’s personal behavior. Umpteenth time, the market will take care of that. All we need to do is see that the individual rights of life, liberty and property are protected.

  • Tom Perkins

    “things people create belong to them”

    Fine, burn a CD with your IP on it and you own it. Taking that would be theft. Copying your idea is theft only in a very technically legal sense.

    Natural law is monkey see, monkey do, copyright is an imposition impairing that. You have a legally enforceable privilege to protect your IP, but strictly speaking you have no right to it.

  • Midwesterner

    Tom Perkins,

    Ah, that would be physical property you are describing. Not intellectual property.

    Intellectual property is the composition itself, not the copies of it. They are physical property.

  • Plamus

    Midwesterner:

    Pickcled Cow – my apologies for the obscure reference. Damien Hirst’s “art”.

    As for concerts and movie theaters, notice the use of “preference” instead of “visceral aversion”.

    Question for you: would you support indefinite (non-expiring) copyrights and patents? If I make a hammer, it’s mine forever, or until I decide to relinquish ownership in one way or another. Not so currently with a book or a song. And would you go and surrender yourself to the appropriate authorities if you ever in the last few years said “You’re fired!”, “I’m loving it!”, or “That’s hot!”? Those are all trademarks. If you say you did not use them commercially – well, neither does a a torrent uploader…

    Best regards, Sir!

  • Midwesterner

    Trademarks and Service marks, yes, non-expiring.

    Copyrights, life + something is a pragmatic answer to something that is philosophically sound but unmeasurable. ‘How soon would somebody else have thought this same thing?’ Not the best method of picking a duration. I’ve not thought of anything better than life + something.

    Patents. Much shorter duration. The velocity of research is extremely much higher than arts. People are pursing solutions to the same problems and confined to strict rules of reality. Arts don’t have these constraints focusing them into a narrow channel.

    To address not just the specifics, but the problem you point out in “”You’re fired!”, “I’m loving it!”, or “That’s hot!”? Those are all trademarks.” This is the kind of thing I was talking about when I referred to eminent domain in the field of intellectual property. Clearly an abuse trademark law. Trademarks are to be unique identifiers of someone’s product. Not popular phrases taken by eminent domain.

    There are far more (at least to my mind) egregious abuses of patent law by rich companies that have professionals who figure out how to cheat the system.

    Problems with rights being stolen does not mean that the rights do not exist. I am all on board for putting a stop to these shenanigans.

  • RAB

    Then again there is always a niche market
    if you look hard enough.
    http://www.time.com/time/magazine/article/0,9171,1702369,00.html

  • yahyah ibn alli

    If this all winds up causing ‘artists’ whose motivation is money first and foremost to wander off in search of greener pastures, well, I’m for it.

  • If big eeeeeeeeeevil corporations can’t sell music, small rural idyllic companies can’t sell music, nor can individuals. There’s no market, period.”

    That’s entirely untrue. Indeed in the “rip it for free” era of the internet, smaller musical acts have a lot more protection. You simply can’t find free downloads of “The Milkshakes” or “The Hentchmen.” If you can, you can’t find much.

    Small bands have subsisted for years without big labels lifting a finger to help them. I know all the words to “Nervous Breakdown” and Capitol Records had nothing to do with it. Bands play live, have their music on sale and folks buy it. Or they look them up on the internet and order it direct, digital or CD. Technology has allowed us to diversify all sorts of entertainment choices (TV being the obvious example). Why not music?

    The big companies are suffering because a handful of super-huge record companies controlling 90% of the musical output is not a tenable system, certainly not with current technology.

  • Midwesterner
    If big eeeeeeeeeevil corporations can’t sell music, small rural idyllic companies can’t sell music, nor can individuals. There’s no market, period.”

    That’s entirely untrue. Indeed in the “rip it for free” era of the internet, smaller musical acts have a lot more protection. You simply can’t find free downloads of “The Milkshakes” or “The Hentchmen.” If you can, you can’t find much.

    The implications of what you are espousing is that any band should be allowed to make a reasonable amount of money, but IP should be protected in such a way that nobody can get rich. The nail that stands up gets beaten down and all that. I think I can understand the sort of world view that idea of a ‘good’ system comes from.

  • If you thought the legal discussion about what contracts are involved when buying a CD was complicated, consider that there are lawyers arguing that printing pictures of your own car is infringing someone’s IP…

  • Midwesterner

    Rob Fisher,

    Wow. No I didn’t read the threads, but the synopsis gave a pretty good idea. What on earth are Ford’s lawyers thinking? They seem confused about what exactly Ford’s product is.

    If Ford’s product is cars and not photographs, then there is no way imaginable that BMC (?) is stealing Ford’s profitability by distributing counterfeit Ford cars. If Ford’s product is calendars, then as long as BMC is not ripping off Ford’s photographs (not Ford car designs, to be ripping car designs they would have to be distributing cars not photos), then Ford has no claim. If Ford is claiming that BMC is presenting their calendars as ‘official’ Ford calendars, I certainly did not pick up anything to support that.

    The only possible legitimate claims I can think of against a calendar with pictures of Fords on it is either that BMC is falsely representing themselves as an ‘official’ Ford product, BMC is slandering Ford (not an IP issue), BMC is stealing copyrighted Ford photographs, and … I’m running out. Ford’s lawyers appear to be claiming that nobody may distribute pictures of Ford’s products without Ford’s consent. Since the photographs in the calendars were not produced by Ford, and distributing them in no way hinders Ford’s ability to sell cars (provided their is no slander in the calendars) this seems to me like an effort to stifle speech and it should be treated as such.

    This is more bullying eminent domain style tactics. Ford needs slapped down in some way that can get the attention of a company that big.

  • Thanks Midwesterner, that helps, because last night when I first read the story I was completely confused. As far as I can tell, “Black Mustang Club” is just a group of classic car enthusiasts. It’s hard to see what Ford can possibly gain from this.

  • Slightly OT:
    I once wrote a wee meditation titled “Rights is Wrong”, whose thesis was that no rights are divine or absolute, but that each consists of an asserted claim on others. These compete for space and precedence, and in practice always have boundaries: my nose, panic in a theatre, etc. Getting the balance wrong means one right is overreaching its warranted purview, and privacy rights of date rapists and HIV-Appleseeders are good examples. [Note: this example is from another thread where I originally made this comment.]

    It is standard fare that those who resist any reduction from “absolute inalienable” status for their favorite right will cite some version of the slippery slope argument: that a little compromise will lead to total collapse and loss. But in practice over-protection and enforcement of one or a few rights over others is far more likely to lead to disastrous abuse.

    Property rights is/are an interesting variant on the species. De facto possession, e.g. by conquest, appears to be the rule for nations and their territory. (Islam has an extreme extension and variant, in that it claims that anywhere ever occupied by an adherent is eternally part of its Ummah.) But ownership of objects is somewhat less problematic, though it is IMO actually another convention that we find very useful and which smooths social interaction in the long run, rather than some philosophical a priori “true right”. (Small communes can get along without this convention, but the experiment doesn’t scale well. There are a few exceptions, like the free cheap public bicycles in some Euro cities.)

    Anyhow, the real point is that these conventions are a matter of preference and choice, and we can slice and dice them any way we choose/agree upon. God won’t mind.

    _______
    P.S.
    The distinction between encouragement and benefit is quite clear to me, notwithstanding MW’s vitriolic objections. It is an economics assumption that gaining the benefit (payment) is the whole goal and point of any action, and that proper adjustment of benefits exchanged or conferred is necessary and sufficient to maintain or increase any productive activity. The framers of copyright and patent laws were not trying to assure the granting of such benefits for creators, but were attempting to maintain their contributions to society by encouraging or enabling them to continue by assuring some return on effort. They were not motivated by any principle of fairness or justice to see that proper benefits were proffered for creativity, just to make it likely that the output would continue for the sake of society and the economy. (Creators are not, of course, purely driven by hope of benefits, but they do need to eat!)

    But discussions of IP get immediately into this area of “fairness” and “rights”. IMO, that is beyond the purview of the laws, which just function to keep artists and inventors from starving in garrets and basements and garages before they can go on to greater things and cost society and the economy the benefit of their genius. So, in a sense, time-limited rights give them just enough, but encourage more creation to keep the meter running. (As an example of abuse of this principle, many outfits, such as pharmaceuticals, work hard at the end of such periods to produce some minor tweak on the cash-cow design to qualify it for a new life.)

    What makes libertarian positions look and feel sort of creaky and awkward to others is the absolutist views on property rights. To accept them just as useful conventions rather than immutable would devalue them, and deflate much of the righteous certainty which is apparently the internal payoff being a libertarian (as with any other claimant to Ultimate Truth).

  • Plamus;
    you must have been really rattled about omitting the cow-link; here’s how you labelled it when you corrected yourself:

    “Pickcled Cow “. Heh. I c, U c, 1 c, 2 c? ;)